Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Posted: March 4, 2013 Filed under: Assumption of the Risk, Missouri, Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Business Invitee, Carrie Lewis, Failure to Warn, Inc., Invitee, Landowner, Law, Lesa Moffatt, Missouri, Resort, Ski, ski area, Ski Resort, skiing, Snow Creek Leave a commentLewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421
A judge that works hard to find problems does not help.
This case is an appeal of two separate ski area injuries that were combined on appeal. The facts in each case, as set forth by the appellate court are identical. The plaintiffs were both represented by the same attorney.
The plaintiffs went to Snow Creek to ski. They rented ski equipment at Snow Creek. While standing in line to get their ski equipment, they were handed the rental form which contained release language.
Both women claimed they felt pressure to move along and did not have enough time to read and “fully comprehend” the rental form. Both went skiing at the resort and fell on ice suffering injuries and sued the ski area. The claims were:
I. Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred;
II. Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to release when the plaintiffs fell, injuring the plaintiff’s leg;
III. Defendant created a dangerous condition by making artificial snow; and
IV. IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises.
The defense used assumption of the risk as its defense. It could not use release, because it has failed to plead release as an affirmative defense. An affirmative defense is one of two dozen or so releases that must be pled, or they are waived. Here the defense firm forgot or did not know to plead the affirmative defense of release, thus it could not be used to stop the lawsuit.
Summary of the court’s analysis
The court first looked at the legal issues of a land owner. In most states, a ski area statute, takes the land owner duties off the table. Missouri had no skier statute so that a land owner, ski area, owes someone on its land a duty based on how the person on the land is defined. Missouri like most states defines people on land of another as:
· Trespasser
· Invitee
· Business Invitee
Here, the injured skiers were either “invitees” or “business invitees.”
An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” As business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. A possessor of land is liable to an invitee only if the possessor:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
The issue then becomes whether the ice on the ski area was open and obvious. The plaintiff claimed the ice was covered by a layer of snow. The defendant argued that the plaintiffs had skied the run several times in the past and therefore, had to have known about the ice. Because there was a difference in the facts, the judge could not make the decision for the ski area and had to send the case back to the trial court for trial.
The next legal issue was whether the plaintiffs assumed the risk. The court defined the four types of assumption of the risk a plaintiff can encounter under Missouri’s law.
· Express
· Implied
· Primary
· Implied Secondary
Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Recovery is completely barred since there is no duty in the first place.
The release identified the risk as snow. Because the plaintiffs claimed they fell on ice, the release did not bar the claim because the plaintiff did not assume the risk of ice.
Then the judge went out to argue that the release was ineffective anyway, even though later in the opinion the judge in one paragraph denies the defense of release.
Under Missouri’s law a release must be written with “clear, unambiguous, unmistakable, and conspicuous language…”
The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. General language will not suffice. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Whether a contract is ambiguous is a question of law to be decided by the court. “An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.
The court found, even though the release used the term negligence, it was not enough.
In 49 other states 99.999% of the time, use of the word negligence would have been satisfactory!
In this case, the court found the term negligence to be too broad and to include intentional torts and gross negligence. Both types of claims are barred under Missouri’s law. “[T]here is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.”
The court held the word negligence in this release was too broad and covered claims that could not be released.
The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, gross negligence or any other cause of action not expressly listed. “A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.”
The court also found the form was not effective as a release because the heading was Snow Creek Ski Area Rental Form. That did not notify the signers of the form that they were signing a release. The title was in large type and could not be construed to be a document attempting to relieve the ski area of liability.
The release clause language was in 5 point type at the bottom of the form. The court found “A provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” “The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving.”
The court then went back to the assumption of the risk discussion.
Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks.
Implied primary assumption of the risk is a complete bar to recovery under Missouri’s law.
…implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. If the plaintiff’s action is reasonable, he is not barred from recovery. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. This case involves implied primary assumption of the risk.
The discussion came down to whether or not falling on ice while skiing was an inherent risk of skiing. With no statute for guidance, the court could not answer the question and sent this issue back to the lower court for a jury to decide. “…there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing.”
The third claim was the release. As stated above, because the release was not pled as an affirmative defense, the court with one paragraph eliminated the defense.
The fourth claim was that artificial snow created a dangerous condition. A land owner does not have to protect invitees against conditions that are open and obvious. Artificial snow is obvious.
So Now What?
The appellate court in this case worked hard to justify throwing the win in the lower court out. It worked so hard it was somewhat scary, but educational on Missouri’s law.
1. Give your guests the opportunity to read and review your release. Post the release on line so they can review it when they are checking out your business or site. Give it to them on a clip board, first page up, so they can read it. Let them know they have all the time in the world to read it and ask questions.
2. Releases must list the risks of the activity. The perfect example of that is this case. If the release fails for any reason, then the release can be used to prove the guest assumption of the risk. Here the release language was so limited that the document could not be used to assume the risk of the accident.
3. No release should have any type on it of less than 10 points or the smallest type allowed by the court in pleadings. PERIOD! That means 5, 6 or 8 point type is too small and can’t be used in a release.
4. If you have a release, make sure you hand it to your insurance company and your attorney. When you send notice of your claim to your insurance company send copies of all important documents, including a copy of the release. Hand an identical packet to the adjuster if one is assigned to the case. Get one to your attorney and make sure they understand what it says. (Crazy I know but do it.)
5. If you do not have a statute that defines the risks of your activity, you cannot use a release written by someone for a state that does. You must list the risks of your activity, sport or program. You must list the major risks and the minor ones. You must list the risks that you encounter all the time and those you rarely encounter.
And even when you are prepared you can have a judge, who does not understand the sport and does not want you to win.
Plaintiff: Lesa Moffatt and Carrie Lewis
Defendant: Snow Creek, Inc.
Plaintiff Claims: Landowner duty, failure to warn, negligent adjustment of ski bindings, gross negligence
Defendant Defenses: Assumption of the Risk
Holding: for the plaintiff, sent back for trial on 3 of the 4 arguments.
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Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421
Posted: March 4, 2013 Filed under: Assumption of the Risk, Legal Case, Missouri, Ski Area, Skiing / Snow Boarding | Tags: Appeal, Appellant, assumption of the risk, Business Invitee, Carrie Lewis, Failure to Warn, Inc., Invitee, Landowner, Lesa Moffatt, Plaintiff, ski area, skiing, Snow Creek, St. Louis Missouri, Summary judgment, Supreme Court Leave a commentLewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421
Carrie Lewis, Lesa Moffatt, Appellants, v. Snow Creek, Inc., Respondent.
WD 55070
COURT OF APPEALS OF MISSOURI, WESTERN DISTRICT
6 S.W.3d 388; 1999 Mo. App. LEXIS 421
March 31, 1999, Opinion Filed
SUBSEQUENT HISTORY: [**1] Respondent’s Motion for Rehearing and/or Transfer to Supreme Court Passed June 1, 1999. Respondent’s Motion for Rehearing and/or Transfer to the Supreme Court Denied July 27, 1999. Opinion Readopted and Mandate Issued January 6, 2000, Reported at: 2000 Mo. App LEXIS 7.
PRIOR HISTORY: Appeal from the Circuit Court of Platte County, Missouri. The Honorable Ward B. Stuckey, Judge.
DISPOSITION: Affirmed in part and reversed in part.
COUNSEL: Fritz Edmunds, Jr., Overland Park, KS, for Appellants.
Thomas Magee, St. Louis, MO, for Respondent.
JUDGES: Albert A. Riederer Judge. Lowenstein and Stith, JJ., concur.
OPINION BY: ALBERT A. RIEDERER
OPINION
[*391] This is an appeal from summary judgments granted in each of two separate suits filed by two different plaintiffs making identical claims against Respondent. Pursuant to a motion filed by Appellants and Respondent, the cases have been consolidated on appeal. Because we find that there is disputed evidence regarding both Respondent’s liability as a possessor of land and Appellant’s implied assumption of the risk, and because we find that express assumption of the risk did not apply under the facts in this record, we reverse on those issues. However, because there is no disputed evidence regarding count III of the petitions, and because Respondent is entitled to judgment as a matter of law on that count, we affirm as to that count.
Factual and Procedural Background
On January 8, 1995, Appellant Lesa Moffatt rented skis at Snow [**2] Creek Ski Area and signed a “Snow Creek Ski Area Rental Form.” On January 21, 1995, Appellant Carrie Lewis rented skis at Snow Creek Ski Area and signed a “Snow Creek Ski Area Rental Form.” The form states in pertinent part:
10. I hereby release from any legal liability the ski area and its owners, agents and employees, as well as the manufacturers and distributors of this equipment from any and all liability for damage and injury or death to myself or to any person or property resulting from the selection, installation, maintenance, adjustment or use of this equipment and for any claim based upon negligence, breach of warranty, contract or other legal theory, accepting myself the full responsibility for any and all such damage, injury or death which may result.
This document was signed by both Lewis and Moffatt during the process of renting equipment. Lewis and Moffatt both stood in line with people in front of and behind them when they received this form. The form had to be completed before obtaining skis and equipment. Both Lewis and Moffatt claim that they felt pressured to move along and did not have an adequate opportunity to read and fully comprehend the rental form.
Lewis [**3] and Moffatt both fell on ice at Snow Creek and were injured. Lewis and Moffatt each filed a separate petition against Respondent which included the same four counts: I. Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred; II. Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to properly release when plaintiff fell, injuring plaintiff’s leg; III. Defendant created a dangerous condition by making artificial snow; and IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises. Respondent generally [*392] denied Appellant’s claims in its answer and asserted affirmative defenses of comparative fault and assumption of the risk.
Respondent filed a motion for summary judgment in each case. Respondent submitted as evidence the “Snow Creek Ski Area Rental Form” and the deposition of the plaintiff in each case. In response to Respondent’s motions for summary judgment, each Appellant submitted additional evidence in the form of her own affidavit. Both motions for summary judgment were granted. Lewis’ and Moffatt’s [**4] claims are identical, and they have been consolidated on appeal.
Standard of Review
[HN1] Our standard of review of a summary judgment is essentially de novo. Lawrence v. Bainbridge Apartments, 957 S.W.2d 400, 403 (Mo. App. 1997) (citing, ITT Commercial Finance Corp., v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). We review the record in the light most favorable to the party against whom judgment was entered and grant the non-moving party the benefit of all reasonable inferences from the record. Id. [HN2] To be entitled to summary judgment a movant must demonstrate that there is no genuine dispute of material fact and that he or she is entitled to judgment as a matter of law. Id.
In accordance with the law, we analyze whether summary judgment is appropriate on the record developed by the parties and presented to this court. The Respondent advances several arguments why summary judgment is appropriate. First, it claims as a possessor of land, it has no duty to warn a business invitee of dangers which are open and obvious as a matter of law and that the ice alleged to have caused the fall and injury was [**5] open and obvious as a matter of law. Second, it claims Appellants expressly assumed the risk of this injury by signing the Rental Form. Third, it claims Appellants impliedly assumed the risk of this injury by engaging in the sport of skiing. Fourth, it claims the Rental Form operates as a release.
I. Duty of the Possessor of Land
Respondent claims that the presence of ice on a ski slope should be determined to be an open and obvious danger as a matter of law.
A. Duty Owed To A Business Invitee
” [HN3] The standard of care owed by a possessor of land is dependent upon the status of the injured party.” Peterson v. Summit Fitness, Inc., 920 S.W.2d 928, 932 (Mo. App. 1996). An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo. banc 1993) (quoting, Restatement (Second) of Torts, § 332 (1965). As [HN4] business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. Peterson, 920 S.W.2d at 932. A possessor of land is [**6] liable to an invitee only if the possessor:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Id. Generally, [HN5] a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Id. at 933. “The exception to this rule is where ‘the possessor should anticipate the harm despite such knowledge or obviousness.'” Id. A condition is open and obvious if invitees should reasonably be expected to discover it. Id.
Given the preceding principles, the pivotal question is whether the ice was an open and obvious condition on the land [*393] as a matter of law. If we determine the ice was an open and obvious condition on the land as a matter of law, Respondent as possessor has no liability – unless he should anticipate the harm despite such knowledge or obviousness. Id. [**7] Thus, the next question would be whether Respondent could reasonably rely on its invitees – skiers – to protect themselves from the danger of ice or whether Respondent should have expected that skiers would not appreciate the danger thus posed. Harris, 857 S.W.2d at 226. We need not reach the second question because this court is unwilling, under the facts as developed in this case, to declare that the conditions on Respondent’s property, which allegedly caused the fall, were open and obvious as a matter of law. To the contrary, we find there is a genuine dispute regarding a material fact: the nature and character of the ice alleged to have caused the fall. “For purposes of Rule 74.04, [HN6] a ‘genuine issue’ exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts.” ITT, 854 S.W.2d at 382. “A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous.” Id. In this case, Appellants characterized the ice as large areas of thick impenetrable ice hidden under a dusting of snow. The evidence is that the Appellants fell on ice which they did not see because [**8] of the snow. Respondent maintained that both Appellants encountered ice on trails that the Appellants had been down several times before they fell. This is not sufficient evidence for this court to find that the ice Appellants encountered was an open and obvious danger as a matter of law. It is not clear that the Appellants should have reasonably been expected to have discovered the icy condition. Peterson, 920 S.W.2d at 933. ” [HN7] When there is disputed evidence – as in this case – on whether the landowner had reason to expect this type of accident . . ., the case properly belongs to the jury.” Harris, 857 S.W.2d at 229. Therefore, we find that Respondent was not entitled to summary judgment because there is a genuine issue regarding the ice, and the ice in question was not an open and obvious danger as a matter of law.
II. Assumption of Risk
Appellants claim that the trial court erred in granting summary judgment because the defense of assumption of the risk requires a jury determination as to disputed material facts. Specifically, Appellants claim that a jury should decide whether they knew of the ice and whether they understood and appreciated the [**9] danger posed by the ice. Respondent claims that the Appellants’ injuries were the result of a risk inherent in the sport of skiing, and therefore, the Appellants assumed the risk, or in the alternative, that Appellants expressly assumed the risk by signing the rental form. [HN8] Assumption of risk is generally categorized as express, implied primary, and implied secondary (reasonable and unreasonable). Sheppard v. Midway R-1 School District, 904 S.W.2d 257, 261-62 (Mo. App. 1995).
A. Express Assumption of Risk
[HN9] Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Id. Recovery is completely barred since there is no duty in the first place. Id. Respondent argues that the Rental Form, signed by both Appellants, specifically mentioned the snow. Respondent correctly argues that the Rental Form relieves it of liability for injury due to snow. The evidence is that the Appellants knew about the snow and voluntarily assumed that risk. However, we cannot agree that the Rental Form relieves Respondent from injury liability due to ice. First, the Rental Form did not mention injury due to ice. [**10] In addition, the Rental Form could only relieve Respondent of such liability if the general reference to “negligence” is sufficient to do so. The clause of the Rental Form reads as follows:
[*394] 10. I hereby release from any legal liability the ski area and its owners, agents and employees, as well as the manufacturers and distributors of this equipment from any and all liability for damage and injury or death to myself or to any person or property resulting from the selection, installation, maintenance, adjustment or use of this equipment and for any claim based upon negligence, breach of warranty, contract or other legal theory, accepting myself the full responsibility for any and all such damage, injury or death which may result.
” [HN10] Although exculpatory clauses in contracts releasing an individual from his or her own future negligence are disfavored, they are not prohibited as against public policy.” Alack v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. 1996). “However, contracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party claiming the benefit of the contract, and clear and explicit language [**11] in the contract is required to absolve a person from such liability.'” Id. (quoting, Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717, 721 (Mo. App. 1995)).
“Historically, [HN11] Missouri appellate courts have required that a release from one’s own future negligence be explicitly stated.” 923 S.W.2d at 336 (emphasis in original). The Court in Alack determined that the best approach was to follow precedent and decisions from our state as well as others and to require [HN12] clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence. 923 S.W.2d at 337. The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. Id. General language will not suffice. Id. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Id. [HN13] Whether a contract is ambiguous is a question of law to be decided by the court. Id. “An ambiguity arises when there is [**12] duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.” Id.
Respondent’s exculpatory clause uses the term “negligence.” However, that does not end our inquiry. We must determine whether the exculpatory clause uses “clear, unmistakable, unambiguous and conspicuous language.” Id. The exculpatory clause purports to shield Respondent from “any claim based on negligence and . . . any claim based upon . . . other legal theory. . . .” Alack teaches us that “there is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.” Id. Respondent argues that the language from paragraph 8 of the rental form “does not purport to release defendant from liability for intentional torts, gross negligence, or activities involving the public interest ” and that use of the word “negligence” results in a clear understanding of the acts for which liability is released. We disagree. The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, [**13] gross negligence or any other cause of action not expressly listed. ” [HN14] A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.” Id. Here, the Rental Form purports to relieve Respondent of all liability but does not do so. Thus, it is duplicitous, indistinct and uncertain, Id., and thence arises an ambiguity. Rodriguez v. General Accident, 808 S.W.2d 379, 382 (Mo. banc 1991).
In addition, the exculpatory language and its format did not effectively notify the Appellants that they were releasing Respondent from claims arising from its negligence. The form the Appellants signed was entitled “Snow Creek Ski Area Rental Form.” It did not indicate it [*395] was a release. This title was in large type and could not be reasonably construed to include release of liability. By contrast, the exculpatory clause is in approximately 5 point type at the bottom of the form. “[ [HN15] A] provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Alack, 923 S.W.2d at 335. The Appellants had to sign [**14] the Rental Form to receive ski equipment and had to do so while in a line. The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving. Id. at 337-38. The language drafted by Respondent is not “unambiguous” or “conspicuous,” and thus does not meet the standard of Alack. Id.
Thus, Respondent cannot rely on that language to claim the Appellants expressly assumed the risk of the injury complained of in the petition.
B. Implied Assumption of Risk
[HN16] Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. Sheppard, 904 S.W.2d at 261. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks. Id. The plaintiff’s consent is implied from the act of electing to participate in the activity. Id. Implied primary assumption of the risk is also a complete bar [**15] to recovery. Id. at 262. On the other hand, [HN17] implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. Id. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. Id. If the plaintiff’s action is reasonable, he is not barred from recovery. Id. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. Id. This case involves implied primary assumption of the risk.
Appellants claim the trial court erred when it ruled, “the court finds that the Plaintiff assumed the risk of injury by skiing on the Defendant’s ski slope and that Plaintiff’s injuries were of a type inherent to the sport of skiing and that this incident involves dangers so obvious that the Defendant does not owe a duty to the Plaintiff and therefore is not required to warn the Plaintiff of such danger.” Respondent argues that the Appellants are barred by [**16] implied primary assumption of risk because by engaging in the sport of skiing, they impliedly assumed the risk of falling on the ice.
“Generally, [HN18] assumption of risk in the sports context involves primary assumption of risk because the plaintiff has assumed certain risks inherent in the sport or activity.” Id.
[HN19] Under comparative fault, if the plaintiff’s injury is the result of a risk inherent in the sport in which he was participating, the defendant is relieved from liability on the grounds that by participating in the sport, the plaintiff assumed the risk and the defendant never owed the plaintiff a duty to protect him from that risk. If, on the other hand, the plaintiff’s injury is the result of negligence on the part of the defendant, the issue regarding the plaintiff’s assumption of that risk and whether it was a reasonable assumption of risk, is an element of fault to be compared to the defendant’s negligence by the jury.
Id. at 263-64. [HN20] The basis of implied primary assumption of risk is the plaintiff’s consent to accept the risk. Id. “If the risks of the activity are perfectly obvious or fully comprehended, plaintiff has consented to [**17] them and defendant has performed [*396] his or her duty.” Martin v. Buzan, 857 S.W.2d 366, 369 (Mo. App. 1993).
[HN21] As a “defending party,” Respondent may establish a right to summary judgment by showing that there is no genuine dispute as to the existence of each of the facts necessary to support its properly pleaded affirmative defense and that those factors show Respondent is entitled to judgment as a matter of law. ITT, 854 S.W.2d at 381. In order for Respondent to have established its right to summary judgment based upon implied primary assumption of the risk, Respondent had to show that there was no genuine dispute that the Appellants’ injuries were the result of falling on ice, and that ice was a risk inherent in the sport of skiing. While there is no question that the Appellants’ injuries were a result of falling on ice, there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing. Respondent notes that many states including Colorado, Idaho, Maine, Michigan, Montana, New Hampshire, New Jersey, New Mexico, Ohio, and West Virginia have all enacted statutes which codify assumption of the risk as is pertains to the sport [**18] of snow skiing. However, there is no such statute in Missouri, and this court is not willing to say, as a blanket rule, that all ice encountered on Respondent’s property is an inherent risk in the sport of snow skiing. There is a genuine dispute as to the nature of the ice. Was it “large areas of thick impenetrable ice hidden under a dusting of snow on the ski slopes,” as the Appellants claim, or was it ice on the slopes that the Appellants had been over several times prior to falling. These are questions which must be answered by a fact-finder. [HN22] While the basis of implied primary assumption of the risk is the plaintiff’s consent to accept the risk, the plaintiff must be aware of the facts that create the danger and they must appreciate the danger itself. Shepard, 904 S.W.2d at 264. Thus, the standard is a subjective one: “what the particular plaintiff in fact sees, knows, understands and appreciates.” Id. Here, the record does not include evidence that the Appellants were aware of the facts that created the danger or that they appreciated the danger itself. In fact, there was only evidence to the contrary, that the Appellants did not know, understand or appreciate [**19] the ice because it was under snow.
Therefore, we find that summary judgment cannot, on this record, be based upon express or implied primary assumption of the risk.
III. Release
Respondent argues on appeal that the “Rental Form” operated as a release. Respondent did not plead release as an affirmative defense in its answer. [HN23] Release is an affirmative defense that must be pleaded in an answer. Rule 55.08. Failure to plead an affirmative defense constitutes a waiver of the defense. Leo’s Enterprises, Inc. v. Hollrah, 805 S.W.2d 739, 740 (Mo. App. 1991). Since Respondent did not plead the affirmative defense of release, summary judgment would not be proper based upon the theory of release.
Artificial Snow
We affirm the trial court’s grant of summary judgment on Count III of the Appellants’ petitions. The Appellants state in Count III of their petitions that Respondent created a dangerous condition by making artificial snow and dispersing it on the ski slope and that Respondent owed a duty to them as business invitees not to create dangerous conditions on the premises. The trial court was correct in granting Respondent’s summary judgment [**20] on Count III, because [HN24] a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Peterson, 920 S.W.2d at 933. A condition is open and obvious if invitees should reasonably be expected to discover it. Id. Respondent could be liable only if it was not reasonable [*397] for it to expect the Appellants to see and appreciate the risk and to take reasonable precautions. Harris, 857 S.W.2d at 226. Artificial snow at Snow Creek is an open and obvious condition, and it is reasonable for Respondent to expect the Appellants to see and appreciate the risk of artificial snow and to take appropriate precautions.
Conclusion
The judgment of the trial court is affirmed as to Count III of each of the petitions. It is reversed and remanded for further proceedings on counts I, II, & IV.
Albert A. Riederer, Judge
Lowenstein and Stith, JJ., concur.
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Good record keeping proves defendant ski area did not operate lift improperly
Posted: February 18, 2013 Filed under: Assumption of the Risk, New York, Ski Area, Skiing / Snow Boarding | Tags: American National Standards Institute, lift, lift attendant, New York, Peter Harris, Ski, Ski Resort, skiing, Song Mountain Ski Center, South Slope Development Corp. Leave a commentPlaintiff’s case is hard to prove when two other people exit the lift properly from the same chair.
Plaintiff was riding a triple lift at the defendant’s ski area with her nine-year-old son and her ex-husband. She became entangled with her son’s skis and remained on the lift after her son, and ex-husband exited the lift. She then exited the lift before the lift hit the safety gate, falling and injuring herself.
A safety gate is a trip mechanism which stops the lift because a rider still on the lift trips it. It is designed to stop the lift if someone fails to exit the lift.
The plaintiff was an experienced intermediate skier. She owned her own skis, and boots had skied more than fifty times and had ridden the lift twice the day she was injured.
After the accident, the plaintiff completed and signed an “incident report form.” The form indicated she had stayed on the lift to allow her son to get off the lift. When she jumped she jumped 6 feet and landed on her left hip.
Prior to the accident, the lift was inspected by the New York Department of Labor and found to be in good condition. The lift met all standards as developed by ANSI (American National Standards Institute). The standards say a triple (obviously fixed grip) chair lift can travel a maximum of five hundred feet per minute (5 miles per hour). This lift was traveling between 400 and 500 feet per minute at the time.
The lift attendant’s daily log was up to date and indicated that everything was operating correctly on the lift. The lift
…fully checked on that date to ensure that all systems were working properly. The stops switches and safety gate were working, the ramps were snow covered and at a proper grade, the phones were working properly and the counter weight on the lift was clear and within normal limits.
One key point the court pointed out was simple. The plaintiff’s husband and son exited the lift with no problems. If the lift was not operating correctly they should have had problems getting off the lift also.
Summary of the case
The court reviewed the defenses and found that nothing was wrong with the lift. The plaintiff did not have an expert witness or any witness who could testify that the lift failed to operate properly. The court quickly dismissed the plaintiff’s claims that the lift failed to operate properly, and the ski area failed to operate the lift properly.
The claims were not supported by the plaintiff with any evidence.
The court looked at the New York statutes concerning skiing GOL §18-102 and GOL §18-104. The NY statute GOL §18-102 covers the duties of passengers who requires a passenger to familiarize themselves with the safe use of any lift prior to using it. GOL §18-104 states
A ski area operator is relieved from liability for risks inherent in the sport of downhill skiing, including the risks associated with the use of a chair lift when the participant is aware of, appreciates and voluntarily assumes the risk.
The court found that the plaintiff failed to comply with the requirements of the skiing code by disembarking at the appropriate location and therefore, assumed the risk of her accident.
The plaintiff’s final argument was a prior case that had been sent back to the trial court because the lift attendant had failed to stop the lift when a mother and son’s ski equipment became entangled. In that case, the court found the son had been yelling and was excited. The plaintiff’s expert witness testified that there was time for the lift attendant to see the child in distress and stop the lift.
Here the court found that no one had indicated to the lift attendant that there were in distress so therefore the lift attendant had no obligation to stop the lift.
So Now What?
The ski area followed all standards and kept great records concerning the lift. The records proved that nothing was wrong with the lift at the time of the accident.
The ski area could prove, through records that it exceeded the requirements or standards for training lift attendants.
Finally, the plaintiff simply failed to present any evidence that the defendant had breached any duty to it.
Simply put, if you have a requirement to keep records, you better do an excellent job of keeping records. The resort’s records were up to date and covered every claim the plaintiff argued.
Plaintiff: Christina J. Tone and Steven Tone
Defendant: Song Mountain Ski Center and South Slope Development Corp. and their Agents, Servants and Employees, and Peter Harris, Individually and d/b/a Song Mountain Ski Center, and Individually as a member, officer, share-holder and director of South Slope Development Corp. and Song Mountain Ski Center
Plaintiff Claims: defendant failed to operate the lift correctly and the lift did not operate correctly and the lift attendants were not properly trained.
Defendant Defenses: Lift operated and was designed correctly and plaintiff assumed the risk.
Holding: Summary judgment granted for the defendant.
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Tone v. Song Mountain Ski Center, et al., 37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U
Posted: February 18, 2013 Filed under: Assumption of the Risk, Legal Case, New York, Skiing / Snow Boarding | Tags: American National Standards Institute, Chairlift, lift, lift attendant, Peter Harris, Ski, Ski lift, skiing, Song Mountain Ski Center, South Slope Development Corp. Leave a commentTone v. Song Mountain Ski Center, et al., 37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U
Christina J. Tone and Steven Tone, Plaintiffs, against Song Mountain Ski Center and South Slope Development Corp. and their Agents, Servants and Employees, and Peter Harris, Individually and d/b/a Song Mountain Ski Center, and Individually as a member, officer, shareholder and director of South Slope Development Corp. and Song Mountain Ski Center, Defendants.
2009-7913
SUPREME COURT OF NEW YORK, ONONDAGA COUNTY
37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U
November 2, 2012, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: lift, chair lift, attendant, skis, skier, mountain, chairlift, skiing, triple, gate, inspection, ski lift, ski area, training, riding, slowed, feet, ramp, snow, speed, deposition testimony, issue of fact, deposition, ex-husband, passenger, downhill, tramway, sport, safe, top
HEADNOTES
[*1217A] Negligence–Assumption of Risk–Skier Injured on Chair Lift.
COUNSEL: [**1] For Plaintiffs: MICHELLE RUDDEROW, ESQ., OF WILLIAMS & RUDDEROW, PLLC.
For Defendants: MATTHEW J. KELLY, ESQ., OF ROEMER, WALLENS, GOLD & MINEAUX, LLP.
JUDGES: Donald A. Greenwood, Supreme Court Justice.
OPINION BY: Donald A. Greenwood
OPINION
The defendants have moved for summary judgment dismissal of the complaint against them, which alleges that the plaintiff suffered a fractured hip at Song Mountain on February 25, 2007 while attempting to exit a chair lift. The defendants move for dismissal on the grounds that all of the evidence shows that the ski lift was properly designed and operated and that the plaintiff assumed the risk of her injury.
As the proponent of the motion, the defendants are required to establish their entitlement to dismissal as a matter of law through the tender of admissible evidence. See, Hunt v. Kostarellis, 27 AD3d 1178, 810 N.Y.S.2d 765 (4th Dept. 2006). The defendants have done so here through their [***2] reliance, inter alia, on the plaintiff’s deposition testimony. The plaintiff testified that she was skiing with her nine year old son at the time and that she was an intermediate level skier with approximately fifteen years of experience. She owned her own skis and boots and had skied more than fifty times. [**2] On the date of the accident, she took two runs down the mountain and on both occasions rode the triple chair lift without incident. On her third occasion up the mountain she again rode the triple chair lift. Her son was with her, as was her ex-husband. Plaintiff testified that she sat on the right side of the chair, her son sat in the middle and the ex-husband sat on the left side. According to plaintiff, while riding up the chair lift she noticed that her skis were crossed with her son’s skis, so she let her son get off the chair lift first. Her ex-husband also got off the chair lift, but plaintiff waited. During her deposition, the plaintiff was shown the “Incident Report Form” completed at the time, which she signed. The form indicates that plaintiff said that she let her son get off first because their skis were crossed and that “I waited too late, and when I jumped approximately 6 feet, landed on my left hip.” When asked at her deposition what she did after her son got off, she responded that she did not remember, that she did not recall trying to get off, but that it happened so quickly that when the chairlift made its turn she “just flew off.”
The defendants also rely upon an [**3] inspection report completed by the Department of Labor on December 12, 2006, two months before the accident. An inspection of the chairlift was conducted by the Industry Inspection Bureau. Two violations unrelated to the design of the lift or exit ramp were found at that time and two unrelated violations were subsequently determined. Defendants note, however, that no deficiencies were found with respect to the design of the lift or exit ramp, the speed of the lift, or the location of the safety gate on the lift.
In addition, the defendants rely upon New York State regulations referenced in the Department of Labor inspections and standards promulgated by the American National Standards Institute which address industry wide safety standards for a variety of products and industries. Those regulations provide that the maximum relative carrier speed in feet per minute for chair lifts states that a triple chairlift carrying skiers may travel at a maximum speed of five hundred feet per minute. Defendants also provide an affidavit of Peter Harris, the President of South Slope Development Corporation, the operator of Song Mountain. Harris indicates that the chairlift traveled at a maximum speed [**4] of four hundred to five hundred feet per minute, which is equal to less than five miles per hour. He also claims that plaintiff failed to depart from the chairlift at the appropriate time, despite being warned by the unload signs. In addition, he indicates that the lift has certain safety mechanisms and if the plaintiff was to stay on the lift as it turned around the bull wheel heading downhill, her skis would hit the safety gate, which would stop the lift and allow for a safe evacuation of the lift. Plaintiff instead jumped from the lift before the safety gate, resulting in her being injured. He notes that the design of the lift specifically would have prevented the injury if she had remained on it, and the fact that the lift operated property is demonstrated by the fact that of the three people on the lift, two of them exited the lift in accordance with proper procedure and were not injured.
Defendants have also established in the first instance that any argument that the lift attendants were not properly trained is without merit, since Harris testified at his deposition that Song Mountain uses an industry standard lift operating training program designed by the National Ski Areas [**5] Association and that the program includes an in depth training DVD, training [***3] manuals and tests. The defendants also rely upon the deposition testimony of Carl Blaney, a long time attendant, who testified that the lift attendants took annual quizzes prior to the start of the season in order to demonstrate that they understood their duties in operating the lifts. It is also argued that plaintiff’s contention that the lift should have been slowed because plaintiff’s nine year old son was riding is incorrect. Blaney testified that the lift would not have been slowed for that reason, nor is there any evidence that simply because a child is riding the lift that it should be slowed. Defendants also point to the lift attendant’s daily log for the date of the accident, which demonstrates that the triple chair lift was fully checked on that date to ensure that all systems were working properly. The stops switches and safety gate were working, the ramps were snow covered and at a proper grade, the phones were working properly and the counter weight on the lift was clear and within normal limits. It is argued that since all of the evidence demonstrates that the lift was operating properly, the [**6] cause of the accident was solely plaintiff’s failure to disembark at the appropriate location, followed by her failure to remain seated once she missed the off load ramp. The defendants have met their burden in establishing that since there is no evidence that they improperly maintained the ski lift or that it was negligently designed, plaintiff cannot make a showing that the risks to her were increased or hidden. See, Sontag v. Holiday Valley, Inc., 38 AD3d 1350, 832 N.Y.S.2d 705 (4th Dept. 2007); see also, Painter v. Peek’n Peak Recreation, Inc., 2 AD3d 1289, 769 N.Y.S.2d 678 (4th Dept. 2003).
The defendants have also met their burden in the first instance of establishing that the plaintiff assumed the risk of her injury. Defendants point to the General Obligations Law, which addresses safety in skiing. The triple chair lift is identified as a “passenger tramway”, a mechanical device intended to transport skiers for the purpose of providing access to ski slopes and trails as defined by the Commissioner of Labor… See, GOL §18-102. Under “duties of passengers” the following are listed: to familiarize themselves with the safe use of any tramway prior to its use and…to board or disembark from passenger tramways only at [**7] points or areas designated by the ski area operator. See, GOL §18-104; see also, 12 NYCRR 54.4(a). A ski area operator is relieved from liability for risks inherent in the sport of downhill skiing, including the risks associated with the use of a chair lift when the participant is aware of, appreciates and voluntarily assumes the risk. See, DeLacy v. Catamount Development Corp., 302 AD2d 735, 755 N.Y.S.2d 484 (3rd Dept. 2003). In assessing whether one injured in the course of participating in a sporting or recreational event has assumed the risk posed by an assuredly dangerous condition, the critical inquiry is whether that condition is unique, constituting a hazard over and above the usual dangers that are inherent in the sport. See, Simoneau v. State of New York, 248 AD2d 865, 669 N.Y.S.2d 972 (3rd Dept. 1998), citing, Morgan v. State of New York, 90 NY2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997). Defendants have established that plaintiff was an experienced skier and had skied extensively at Song Mountain. It is further argued that the plaintiff assumed the risk of her injury by failing to comply with the requirements of the safety and skiing code by disembarking at the appropriate location. Plaintiff testified that she failed to get off the lift [**8] at the dismount area and had she stayed on she would have tripped the safety gate, which would have stopped the lift automatically. Inasmuch as the defendants have met their burden in the first instance, the burden shifts to the plaintiff to raise an [***4] issue of fact. See, Hunt, supra.
The plaintiff points to a recent Fourth Department case where the plaintiff skier was riding a chair lift with her son, a snow boarder. Plaintiff’s skis became entangled with the snow board and her son panicked and began yelling that he could not untangle the skis, despite frantic attempts. See, Miller v. Holiday Valley, Inc., 85 AD3d 1706, 925 N.Y.S.2d 785 (4th Dept. 2011). Plaintiff’s son exited the lift, but he pulled the plaintiff out of the lift chair in the process and she was injured. See, id. Plaintiff alleged that the top lift attendant should have slowed or stopped the lift because she and her son reached the unloading area. See, id. The court found that a question of fact existed as to whether the alleged failure to operate the ski lift in a safe manner was a proximate cause of the accident. See, id. In so finding, the court noted plaintiff’s deposition testimony that her son was yelling and making frantic attempts [**9] to untangle the skis and snow board and that plaintiff’s expert relied on that testimony in concluding that “the top lift attendant had sufficient time to observe plaintiff’s distress and to engage in what defendant’s night lift operation supervisor characterized as the exercise of judgment to slow or stop the lift.” Id. Defendants correctly argue that there is no evidence in the present case that plaintiff and her son caused any type of commotion prior to reaching the unloading area or tried to alert the attendant in any way for the top lift attendant to have noticed they were having any difficulty. The plaintiff has failed to come forward with proof in admissible form as in Miller, supra. that either the ski lift operator saw or should have seen that the plaintiff was in distress. Nor does plaintiff provide an expert opinion that based upon the facts here, the operator had time to take an action that would have prevented plaintiff’s fall. Plaintiff has likewise failed to raise an issue of fact as to whether she assumed the risk of her injury. Plaintiff does not dispute her experience as a skier or that she was familiar with the subject lift, as required by law. See, GOL §18-104; see [**10] also, 12 NYCRR §54.4. Nor has she submitted evidence to raise an issue of fact as to whether the defendants “created a dangerous condition over and above the usual dangers inherent in the sport of [downhill skiing]” Bennett v. Kissing Bridge Corporation, 17 AD3d 990, 794 N.Y.S.2d 538 (4th Dept. 2005), quoting, Owen v. RJS Safety Equip., 79 NY2d 967, 591 N.E.2d 1184, 582 N.Y.S.2d 998 (1992); see also, Miller, supra, quoting, Sontag, supra.
The plaintiff has also failed in her burden with respect to whether the lift attendants were properly trained, and in fact points to the National Ski Area’s Association Training completed by defendant’s employees. Nor has the plaintiff raised an issue as to whether the lift was properly operating on the day of the accident. Plaintiff has not disputed the inspection reports or the defendants’ compliance with the requisite regulations.
NOW, therefore, for the foregoing reasons, it is
ORDERED, that the defendant’s motion for summary judgment dismissal is granted.
ENTER
Dated: November 2, 2012
Syracuse, New York
DONALD A. GREENWOOD
Supreme Court Justice [***5]
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New Hampshire season pass release protects ski area from claim for injury due to snowmobile accident
Posted: February 4, 2013 Filed under: New Hampshire, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Bennington, Crotched Mountain Ski Area, Inc., New Hampshire, NH, Peak Resorts, Release, ski area, skiing, SNH Development, Snowmobile, Special Relationship, Waiver Leave a commentMcGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45
Language of the release was broad enough to cover those claims that were not clearly contemplated by the parties to the release.
The facts in this case are simple. The plaintiff was a season pass holder of Crotched Mountain Ski Area in Bennington, New Hampshire. Crotched Mountain Ski Area is owned by SNH Development, Inc., which is a subsidiary of Peak Resorts, Inc. While skiing at the resort one day an employee of the ski area drove a snowmobile into the plaintiff’s path causing a collision.
The plaintiff sued, and the defendants raised the defense of the release.
Summary of the case
The court reviewed the legal issues fairly extensively under New Hampshire law. Releases are upheld under New Hampshire law, as long as they:
(1) do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff’s claims were within the contemplation of the parties when they executed the contract.”
Under New Hampshire law, to violate public policy the release must be between parties with a special relationship or there was a disparity in bargaining power. A special relationship exists if the defendant “is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service...” The court found the ski area did not meet the definition to create a special relationship to the plaintiff.
There was no disparity of bargaining power because to have that situation, the services offered by the defendant must be a “matter of practical necessity.” A necessity is something needed to survive in this day and age, food, power, phone or utilities generally. Skiing is not necessary to survive; it is recreation.
The plaintiff also argued the release violated public policy because New Hampshire has a statute governing snowmobiles. Because the snow mobile was operating on private land, the court also rejected this argument.
The next claim was the release should not be upheld because it the plaintiff did not contemplate that the release would be used to bar a claim for an accident with a snowmobile. Under New Hampshire law the release does not have to name with any specificity, the possible claims that it will protect against. The release only has to adopt language that covers a broad range of accidents.
Thus, in order to release a defendant from liability for his own negligence, “the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” There is no requirement that the term “negligence” or any other magic words appear in the release as long “as the language of the release clearly and specifically indicate the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”
From the quote from another New Hampshire case, Audley v. Melton, 138 N.H. 416, 418, 640 A.2d 777 (1994), it is obvious that in New Hampshire, you do not have to use the word negligence in a release. However, doing so creates more opportunities to test the release and the law.
The plaintiff argued that the release does not use the word snowmobile so a collision with a snowmobile falls outside of the release. However, a review of the release by the court found the language was broad enough to cover the facts in the case, a collision with a snowmobile.
This argument also created an argument that the release only covered the inherent risks of skiing. Inherent risks are those risks those are part and parcel of the risk. Inherent risks, unless changed by statute, do not cover any increases in the risk caused by man’s involvement. So a snowmobile is not an inherent risk of skiing.
However, the court found the release did not use the term inherent in it so the risks contemplated by the release were not limited to the inherent risks of the sport of skiing.
So Now What?
Like all cases involving a release, the release must be written carefully so not to be thrown out. This means someone who knows the law, knows the sport or activity you engage in and knows you must write the release.
Here, if the release had incorporated the word inherent, as many releases do, the release would have failed.
Plaintiff: Marcella McGrath f/k/a Marcella Widger
Defendant: SNH Development, Inc.
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: Release bars the claims of the plaintiff
What do you think? Leave a comment.
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McGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45
Posted: February 4, 2013 Filed under: Legal Case, New Hampshire, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Bennington, Crotched Mountain, Crotched Mountain Ski Area, Inc., New Hampshire, New Hampshire Superior Court, New Hampshire Supreme Court, NH, Peak Resorts, Release, ski area, skiing, SNH Development, Snowmobile, Special Relationship, Summary judgment, Waiver 1 CommentMcGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45
Marcella McGrath f/k/a Marcella Widger v. SNH Development, Inc. and John Doe, an unnamed individual
No. 07-C-0111
SUPERIOR COURT OF NEW HAMPSHIRE, HILLSBOROUGH COUNTY
2008 N.H. Super. LEXIS 45
May 19, 2008, Decided
NOTICE:
THE ORDERS ON THIS SITE ARE TRIAL COURT ORDERS THAT ARE NOT BINDING ON OTHER TRIAL COURT JUSTICES OR MASTERS AND ARE SUBJECT TO APPELLATE REVIEW BY THE NEW HAMPSHIRE SUPREME COURT.
SUBSEQUENT HISTORY: Affirmed by McGrath v. SNH Dev., Inc., 158 N.H. 540, 969 A.2d 392, 2009 N.H. LEXIS 43 (2009)
CORE TERMS: skiing, ski area, personal injury, snowmobile, negligence claim, summary judgment, public policy, reasonable person, exculpatory, property damage, inherent hazard, public service, bargaining power, contemplate, import, common occurrence, relationship existed, citations omitted, hazardous, disparity, sport, exculpatory provision, exculpatory clause, public interest, privately owned, horseback riding, contemplation, collision, racing, voluntarily assume
JUDGES: [*1] GILLIAN L. ABRAMSON, PRESIDING JUSTICE.
OPINION BY: GILLIAN L. ABRAMSON
OPINION
ORDER
The plaintiff commenced the instant action alleging negligence against the defendants, SNH Development, Inc. (“SNH Development”) and John Doe, an unnamed individual. The defendants now move for summary judgment, and the plaintiff objects.
For purposes of the defendants’ motion for summary judgment, the parties do not appear to dispute the following facts. SNH Development is a subsidiary of Peak Resorts, Inc. and owns and operates the Crotched Mountain Ski Area in Bennington, New Hampshire. On October 23, 2003, the plaintiff signed an application (the “application”) for a season pass to the Crotched Mountain Ski Area. The application provides:
I understand and accept the fact that alpine skiing in its various forms is a hazardous sport, and I realize that injuries are a common occurrence. I agree, as a condition of being allowed to use the ski area facility, that I freely accept and voluntarily assume all risks of personal injury or death of property damage, release Crotched Mountain its owners and its agents, employees, directors, officers and shareholders from any and all liability for personal injury or property damage [*2] which results in any way from negligence, conditions on or about the premises, the operations of the ski area including, but not limited to, grooming snow making, ski lift operations, actions or omissions of employees or age the area, or my participation in skiing, accepting myself the full responsibility
Defs.’ Mot. for Summ. J., Ex. B. Moreover, on December 20, 2003, the plaintiff signed a Liability Release Agreement, which provides:
I understand and accept the fact that alpine skiing in its various forms is a hazardous sport, and I realize that injuries are a common occurrence. I agree, as a condition of being allowed to use the area facility, that I freely accept and voluntarily assume all risks of personal injury or death or property damage, and release Peak Resorts, Inc, all of its subsidiaries, and its agents, employees, directors, officers, shareholders and the manufacturers and distributors of this equipment and the school and group organizers (collective “providers’), from any and all liability for personal injury, death or property damage which results in any way from negligence, conditions on or about the premises, the operation of the area including, but not limited to grooming, [*3] snowmaking, lift operations, actions or omissions of employees or agents of the areas, or my participating in skiing, snowboarding, blading, accepting myself the full responsibility.
Id. On February 20, 2004, the plaintiff was skiing 1 a trail at the Crotched Mountain Ski Area when an employee of SNH Development drove a snowmobile into the plaintiff’s path, causing a collision.
1 Some of the pleadings state that the plaintiff was skiing, while other’s state that the plaintiff was snowboarding.
The defendants now move for summary judgment, arguing that the plaintiff signed the application and the Liability Release Agreement, both of which are valid, enforceable exculpatory contracts. The plaintiff objects, arguing that the application and the Liability Release Agreement violate public policy and that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim.
In ruling on a motion for summary judgment, the Court “consider[s] the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party.” White v. Asplundh Tree Expert Co., 151 N.H. 544, 547, 864 A.2d 1101 (2004). [*4] The Court must grant a motion for summary judgment if its “review of the evidence does not reveal a genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law Id. A fact is material “if it affects the outcome of the litigation under the applicable substantive law.” Palmer v. Nan King Restaurant, 147 N.H. 681, 683, 798 A.2d 583 (2002).
New Hampshire law generally prohibits exculpatory contracts, but the Court will enforce them if; “(1) do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff’s claims were within the contemplation of the parties when they executed the contract.” Dean v. MacDonald, 147 N.H. 263, 266-267, 786 A.2d 834 (2001). Thus, the Court considers each of these requirements in turn.
Regarding the first requirement, an exculpatory contract violates public policy if a special relationship existed between the parties or if there was some other disparity in bargaining power. See Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106, 509 A.2d 151 (1986) (“A defendant seeking to avoid liability must show that the exculpatory agreement does [*5] not contravene public policy i.e that no special relationship existed between the parties and that there was no other disparity in bargaining power.”).
A special relationship exists “[w]here the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service….” Id. The plaintiff contends that a special relationship existed between the parties because any person operating a snowmobile has a statutory duty to yield the right of way, RSA 215-C:49, XII (Supp. 2007), and because the Crotched Mountain Ski Area serves the public. Assuming that RSA 215-C:49, XII applies to the operation of a snowmobile on a privately owned ski area, the plaintiff has not offered any legal support for the conclusion that this statute somehow charges the defendants with a duty of public service. Moreover, the fact that the Crotched Mountain Ski Area serves the public is not conclusive. For example, Barnes, involved a negligence claim arising from a collision at an enduro kart racing facility. In Barnes, the New Hampshire Supreme Court noted that the defendant’s served the public but held that the defendant’s were not charged with a duty of public service because [*6] Endurokart racing is not “affected with a public interest.” Barnes, 128 N.H. at 108. Similarly, skiing is a recreational activity not affected with a public interest, and the Court finds that the defendant’s are not charged with a duty of public service.
The Plaintiff also contends that she was at an obvious disadvantage in bargaining power because all ski areas require skiers to sign releases. The Court disagrees.
This case … does not have any hallmarks of a disparity in bargaining power. The [skiing] service offered by the defendant is not a “matter of practical necessity.” Nor did the defendant in this ease have monopoly control over this service such that the plaintiff could not have gone elsewhere.
Audley v. Melton, 138 N.H. 416, 418, 640 A.2d 777 (1994) (quoting Barnes, 128 N.H. at 108). 2
2 The Plaintiff also argues that the application and the Liability Release Agreement violate public policy because they relieve the defendant’s from compliance with RSA chapter 215-C, which governs snowmobiles. Assuming that RSA chapter 215-C applies to the operation of a snowmobile on privately owned ski area, the application and the Liability Release Agreement would have no bearing on the enforcement of RSA chapter 215-C. [*7] See RSA 215-C-32 (Supp.2007) (providing for the enforcement of RSA chapter 215-C).
“Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that reasonable person in his position would have known of the exculpatory provision.” Barnes, 128 N.H. at 107. “The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.” Wright v. Loon Mt. Recreation Corp., 140 N.H. 166, 169, 663 A.2d 1340 (1995). The Court
therefore examine[s] the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence….”
Id. (citations omitted) (quoting Barnes, 128 N.H. at 107). The Court “will assess the clarity. the contract by evaluating it as a whole, not by examining [*8] isolated words and phrases. Id. at 169-170.
The plaintiff does not appear to dispute that she understood the import of the application or the Liability Release Agreement. Rather, the plaintiff argues that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim. Thus, the Court turns to the third requirement.
“[T]he plaintiff’s claims must have been within the contemplation of the parties at the time of the execution of the agreement. The parties need not, however, have contemplated the precise occurrence that resulted in the plaintiff’s injuries. They may adopt language to cover, a broad range of accidents….” Barnes, 128 N.H. at 107 (citation omitted). To determine the scope of a release, the Court examines its language, strictly construing it against the defendant. Dean, 147 N.H. at 267.
Thus, in order to effectively release a defendant from liability for his own negligence, “the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” There is no requirement that the term “negligence” or any other magic words appear in the release as long “as the language of [*9] the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”
Audley, 138 N.H. at 418 (citations omitted) (quoting Barnes, 128 N.H. at 107).
The plaintiff contends that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim because neither the application nor the Liability Release Agreement reference snowmobiles. As rioted above, the parties need not have contemplated a negligence claim arising from a snowmobile accident. Rather, it is sufficient that the parties adopted language to cover a broad range of accidents. The application releases the defendants “from any and all liability for personal injury or property damage which results in any way from negligence,” and the Liability Release Agreement releases the defendants “from any and all liability for personal injury, death or property damage which results in from negligence.” Defs.’ Mot. for Summ. J., Ex. B. This language clearly states that the defendants are not responsible for the consequences of their negligence.
The Plaintiff also contends that the parties did [*10] not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim because snowmobiles are not an inherent hazard of skiing. The plaintiff relies on Wright. In Wright, the New Hampshire Supreme Court noted:
The paragraphs preceding the exculpatory clause emphasize the inherent hazards of horseback riding. Because the exculpatory clause is prefaced by the term “therefore,” a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that
Wright, 140 N.H. at 170. Here, however, the application and the Liability Release Agreement do not mention the inherent hazards of skiing. Rather, the application and the Liability Release Agreement note that skiing is a hazardous sport and that injuries are a common occurrence and then, without using the term “therefore,” release the defendants from any and all liability. Because the application and the Liability Release Agreement do not use the phrase “inherent hazards of skiing” or the term “therefore,” this case is distinguishable from Wright. A reasonable person would have contemplated that the application and the [*11] Liability Release Agreement would release the defendants from a negligence claim, whether nor not that claim arouse from an inherent hazard of skiing.
Based on the foregoing, the defendant’s motion for summary judgment is GRANTED.
So ORDERED.
Skier Fatalities by Month
Posted: January 30, 2013 Filed under: Ski Area, Skiing / Snow Boarding | Tags: fatality, National Ski Area Association, NSAA, Ski, ski area, ski Area Fatality, Ski Resort, Sports, Winter sport Leave a commentThese are fatalities at ski resorts, in-bounds and not labeled by the NSAA as a medical issue. These are from my reports and not from the NSAA.
The first chart is the skier and boarder fatalities by year.
This chart is the skier and boarder fatalities graphed by month for each year.
Here are the numbers:
| 12-13 | 12-11 | 11-10 | 10-09 | 09-08 | 08-07 | 07-06 | 06-05 | 05-04 | |
| Nov | 0 | 3 | 1 | 2 | 0 | 2 | 0 | 2 | 0 |
| Dec | 5 | 1 | 12 | 4 | 10 | 5 | 3 | 2 | 10 |
| Jan | 3 | 17 | 13 | 7 | 10 | 12 | 11 | 9 | 12 |
| Feb | 12 | 14 | 9 | 6 | 13 | 11 | 14 | 14 | |
| Mar | 14 | 9 | 6 | 6 | 23 | 3 | 8 | 5 | |
| Apr | 0 | 1 | 1 | 4 | 3 | 0 | 6 | 1 | |
| May | 0 | 1 | 0 | 0 | 0 | 0 | 0 | 0 | |
| Total | 8 | 47 | 51 | 29 | 36 | 46 | 27 | 40 | 42 |
I cannot make any discernible connection just by looking at the month when a skier or boarder has a fatality at a ski area in bounds.
What do you think? Leave a comment.
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Ski Binding Failure to Release under Indiana Law
Posted: January 28, 2013 Filed under: Assumption of the Risk, Indiana, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Indiana, Plaintiff, Product liability, Salomon North America, Sitzmark Corporation, Ski, Ski binding, Summary judgment Leave a commentIndiana, like most states’, product liability law is controlled by statute which severely limits the defenses available to a defendant. Here the retailer and manufacture were sued for injuries when a ski binding failed to release, both being in the chain of the sale of the product. The plaintiff had signed a “sales slip” which contained release language when she picked up the skis; however the sales slip (release) was only effective against one of the three claims of the plaintiff.
The defendants had filed a motion for summary judgment at the trial court which was granted on all counts. The plaintiff appealed and the appellate court reversed on two of the three product liability claims.
The plaintiff had purchased new skis and bindings from the retailer Sitzmark Corporation which included bindings manufactured by Salomon North America. On the plaintiff’s third run while skiing and her first fall on her new equipment she fell suffering a compound fracture.
The plaintiff sued claiming negligence and strict liability. The negligence claim included two sub-claims negligent design of the bindings and negligent adjustment of the bindings by the retailer. The defenses were “incurred risk” and the release contained in the sales slip. Indiana uses the term incurred risk instead of the term assumption of the risk.
Summary of the case
The language in the sales slip that constituted the release language, excerpted below, did not contain the magic word release. It only talked about assumption of the risk issues. The plaintiff did acknowledge understanding the language.
I have been instructed in the use of my equipment, I have read the manufacturer’s instruction pamphlet (new bindings only), I have made no misrepresentation in regard to my height, weight, age, or skiing ability . . . . I understand that there are inherent and other risks involved in the sport for which this equipment is to be used, snow skiing, that injuries are a common and ordinary occurrence of the sport and I freely assume those risks. I understand that the ski boot binding system will not release at all times or under all circumstances, nor is it possible to predict every situation in which it will release and is therefore no guarantee for my safety. I therefore release the ski shop and its owners, agents and employees from any and all liability for damage and from the selection, adjustment and use of this equipment, accepting myself the full responsibility for any and all such damage or injury which may result.
The court reversed the lower court and reinstated the plaintiff’s strict liability claim. Strict liability is set out by statute in Indiana, Ind. Code 33-1-1.5-1 et seq. The court stated the statute had a three part test for the manufacture and retailer to use as a defense in a strict liability claim.
First, a plaintiff’s knowledge of the defect.
Second, a plaintiff’s unreasonable use of the product despite knowledge of the defect.
Third, a plaintiff’s injuries caused by the product.
The court analyzed the arguments and decided that neither defendant could prove that the plaintiff new of any defect in the binding. This was different from the argument they could prove, through the release language that “Moore knew her bindings would not release under all circumstances.” Because neither defendant could win on step one the case was sent back.
The first negligence claim was a common law negligence claim. Common law meaning the law that evolved over time (and not based on statute), usually from the law carried over from Great Britain. The common law was developed in England during the 1500’s from the King’s decrees and the church’s equity decisions. As time progressed these laws became more streamline and eventually codified, or written down. The common law still exists in all states and is the basis for the law in every state (Louisiana being the sole exception). Only when a statute has been created will a section of the common law for that state disappear or cease to exist. Ninety-nine percent of all negligence claims are common law. A state may have a void in its common law, an area that has never been decided in the state before, however this is getting rare now days.
A common law product liability action in Indiana can be defeated by the defense of incurred or assumption of the risk. However assumption of the risk as a defense had been merged into comparative negligence in Indiana at this time.
The defendants argued that by signing the sales slip the plaintiff assumed the risk of the defect in the product. The court however found the sales slip was proof of assumption of the risk, but not of assumption of negligence the difference is the greater requirement of knowledge required by the statute. Because the first time she fell was also the time she was injured the plaintiff had no direct knowledge of the defect of the product. In this case defect would mean failure of the binding to release. As such, the defense failed because there was no proof of assumption of the risk of negligence. Because the binding has not failed to release prior to the injury, the plaintiff had no knowledge of the binding failing to release that she could assume. This claim was also sent back to the lower court.
The third and final claim was based on negligently “setting, adjusting or checking the bindings.” Here the sales slip with its release language was effective. The court stated “These alleged acts of negligence are exactly those for which Moore granted Sitzmark a release of liability when she read and signed the sales slip.” This final claim was dismissed by the appellate court.
This case is a little confusing because of two issues. Indiana law on product liability is different from many states and the release language in the sales slip was very poorly written. There is not much that can be done about Indiana’s product liability law and the limitation on the defenses available manufacture’s and retailers. However a well written release might have prevented one of the product liability claims.
So Now What?
The release is not clearly identified, other than in a sales slip in this opinion. However during this period, these releases were fairly uniform and used by shops across the US. These preprinted forms are written in a way as to not cause a problem with any state laws rather than to effectively stop a claim.
Having a release in this case that specifically used the word the negligence and identified the defendants as the shop, by name and all manufactures would be the first start. The court spent a lot of space finding a way to bring the manufacture into the defense provided by the release language when the language did not specifically mention the manufacture. The language of the release should incorporate the necessary defenses of the Indiana Strict Liability Act so that the defense in the act is available. The negligence claims should be identified both for negligent acts, negligent mounting and setting and negligent in the design, manufacture or construction of the product. The language should also include more specific assumption of the risk language so the purchaser or customer who is having repairs done understands the risks are not that the binding may not work, but that the risk is the binding will not work and that the user should ski knowing that and in a safe way.
A well written release, based on Indiana law may be difficult to do. However, a well written release will still be better than the one at issue here. Each claim that survives the motions and appeal increases the cost of litigating and the cost of a possible settlement. If the release had eliminated one more of the claims a lower settlement would be easier to achieve, maybe even a complete win at trial.
Plaintiff: Eldonna Moore
Defendant: Sitzmark Corporation and Salomon North America, Inc.,
Plaintiff Claims: negligence (product liability) and strict liability
Defendant Defenses: Assumption of the Risk (Incurred Risk) and Release
Holding: One claim dismissed based on the release and the two remaining claims sent back to the trial court.
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Moore v. Sitzmark Corporation and Salomon North America, Inc., 555 N.E.2d 1305; 1990 Ind. App. LEXIS 769; CCH Prod. Liab. Rep. P12,523
Posted: January 27, 2013 Filed under: Assumption of the Risk, Indiana, Legal Case, Release (pre-injury contract not to sue), Skiing / Snow Boarding Leave a commentMoore v. Sitzmark Corporation and Salomon North America, Inc., 555 N.E.2d 1305; 1990 Ind. App. LEXIS 769; CCH Prod. Liab. Rep. P12,523
Eldonna Moore, Plaintiff-Appellant, v. Sitzmark Corporation and Salomon North America, Inc., Defendants-Appellees
No. 73A01-8908-CV-332
Court of Appeals of Indiana, First District
555 N.E.2d 1305; 1990 Ind. App. LEXIS 769; CCH Prod. Liab. Rep. P12,523
June 27, 1990, Filed
PRIOR HISTORY: [**1] Appeal from the Shelby Superior Court No. 1; The Honorable Jonathan E. Palmer, Judge; Cause No. 20C01-8806-CP-095.
COUNSEL: Attorneys for Appellant: C. Warren Holland, Michael W. Holland, William J. Rumely, Holland & Holland, Indianapolis, Indiana.
Attorneys for Appellees: C. Wendell Martin, Amy L. Rankin, Martin, Wade, Hartley & Hollingsworth, Indianapolis, Indiana.
JUDGES: Baker, J. Ratliff, C.J., and Hoffman, P.J., concur.
OPINION BY: BAKER
OPINION
[*1306] Plaintiff-appellant Eldonna Moore (Moore) broke her leg in a snow skiing accident. She subsequently brought this suit against defendant-appellees Salomon North America, Inc. (Salomon) and Sitzmark Corporation (Sitzmark), the manufacturer and seller, respectively, of the ski bindings she was using when she broke her leg The trial court granted summary judgment to Salomon and Sitzmark, and Moore now appeals. We affirm in part and reverse in part.
On February 18, 1986, Moore, an experienced skier, purchased a pair of new downhill skis and new bindings from Sitzmark. Sitzmark installed the bindings, known as Salomon 747 bindings, on the skis, and adjusted them to release based on Moore’s weight. At the time of purchase, Moore signed a sales slip which contained the following [**2] language.
I have been instructed in the use of my equipment, I have read the manufacturer’s instruction pamphlet (new bindings only), I have made no misrepresentation in regard to my height, weight, age, or skiing ability . . . . I understand that there are inherent and other risks involved in the sport for which this equipment is to be used, snow skiing, that injuries are a common and ordinary occurrence of the sport and I freely assume those risks. I understand that the ski boot binding system will not release at all times or under all circumstances, nor is it possible to predict every situation in which it will release and is therefore no guarantee for my safety. I therefore release the ski shop and its owners, agents and employees from any and all liability for damage and from the selection, adjustment and use of this equipment, accepting myself the full responsibility for any and all such damage or injury which may result.
Moore admits to having read and understood the sales slip.
On March 1, 1986, Moore went to Sugarloaf Mountain in Michigan and used her new skis and bindings for the first time. She made two uneventful “runs” down the most difficult slope. On her third trip [**3] down the slope, however, she took a severe fall, during which the binding on her right ski did not release. As a result of the fall, she suffered a compound fracture of her right femur.
Moore brought suit against Salomon and Sitzmark, alleging theories of negligence and strict liability. The negligence claim against Salomon was premised on negligent design, and the negligence claim against Sitzmark was premised on negligent adjustment of the bindings. In their motions for summary judgment, Salomon and Sitzmark argued that Moore had incurred the risk, and the trial court granted the motions on that basis. On appeal, Moore raises two restated issues for our review. First, whether the trial court erred in finding she had incurred the risk. Second, whether the release of liability Moore signed was effective.
[HN1] When reviewing a grant of summary judgment, we apply the same standards as the trial court, and examine the pleadings, depositions, answers to interrogatories, [*1307] admissions, and affidavits filed with the court in the light most favorable to the party opposing summary judgment. Hatton v. Fraternal Order of Eagles (1990), Ind. App., 551 N.E.2d 479. Summary judgment is appropriate [**4] only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Id. When a defendant is the moving party, it is entitled to judgment as a matter of law when it demonstrates one of two things. First, that the undisputed material facts negate at least one element of the plaintiff’s claim. Second, the defendant may raise an affirmative defense which bars the plaintiff’s claim. 3 W. HARVEY, INDIANA PRACTICE § 56.9 at 629 (1988). If a defendant cannot make one of these showings, summary judgment is improper.
I. INCURRED RISK
A. Strict Liability
Moore argues she incurred only the ordinary risk of falling while skiing. Based on the language in the sales slip’s release of liability, Salomon and Sitzmark argue Moore incurred the risk that her bindings could fail to release and that she might suffer harm as a result. Salomon and Sitzmark are correct, but that is not dispositive of the case.
Moore’s strict liability theory, based on her allegation that the bindings were defective, is a statutory cause of action controlled by the Indiana Product Liability Act, IND. CODE 33-1-1.5-1 et seq. [HN2] The Act has preempted the Indiana common [**5] law of strict liability and “governs all actions in which the theory of liability is strict liability in tort.” IND. CODE 33-1-1.5-1. See Koske v. Townsend Engineering Co. (1990), Ind., 551 N.E.2d 437. Under the Act,
(a) One who sells, leases, or otherwise puts into the stream of commerce any product in a defective condition unreasonably dangerous to any user or consumer or to his property is subject to liability for physical harm caused by that product to the user or consumer or his property if that user or consumer is in the class of persons that the seller should reasonably foresee as being subject to the harm caused by the defective condition, and if:
(1) the seller is engaged in the business of selling such a product; and
(2) the product is expected to and does reach the user or consumer without substantial alteration in the condition in which it is sold by the person sought to be held liable under this chapter.
IND. CODE 33-1-1.5-3(a). IND. CODE 33-1-1.5-2 defines a seller as “a person engaged in business as a manufacturer, a wholesaler, a retailer, a lessor, or a distributor.” Accordingly, if Moore can prove the bindings were in a defective condition unreasonably dangerous, [**6] Salomon as manufacturer, and Sitzmark as retail seller, will be subject to liability under the Act.
The Act provides that defendants may raise the affirmative defense of incurred risk, as Salomon and Sitzmark did here. [HN3] “It is a defense that the user or consumer bringing the action knew of the defect and was aware of the danger and nevertheless proceeded unreasonably to make use of the product and was injured by it.” IND. CODE 33-1-1.5-4(b)(1) (emphasis added). The party asserting incurred risk bears the burden of proving the defense by a preponderance of the evidence, Get-N-Go, Inc. v. Markins (1989), Ind., 544 N.E.2d 484, reh’g granted on other grounds, 550 N.E.2d 748, and this requires three showings under IND. CODE 33-1-1.5-4(b)(1). First, a plaintiff’s knowledge of the defect. See, e.g., Corbin v. Coleco Industries, Inc. (7th Cir. 1984) 748 F.2d 411. Second, a plaintiff’s unreasonable use of the product despite knowledge of the defect. Third, a plaintiff’s injuries caused by the product. 1
1 In reality, of course, the third element will generally be shown by the plaintiff, requiring the party raising incurred risk to prove only the first two elements.
[**7] This is where Salomon and Sitzmark fail. Neither of them asserts that Moore knew of any defect in the bindings, they merely argue Moore knew her bindings would not release under all circumstances. [*1308] Absent the threshold showing that Moore knew of a defect in the bindings, neither Salomon nor Sitzmark is entitled to summary judgment on the grounds of incurred risk. The trial court’s grant of summary judgment on Moore’s strict liability theory was improper. 2
2 If, upon remand, Salomon and Sitzmark are able to prove Moore incurred the risk of a defect in the bindings, this will act as a complete bar to Moore’s strict liability claim. [HN4] The Comparative Fault Act, IND. CODE 34-4-33-1 et seq., does not include strict liability theory actions, but only those actions based on fault. See IND. CODE 34-4-33-1.
B. Negligence
A similar analysis applies to Moore’s negligent design theory against Salomon. [HN5] A plaintiff may, of course, bring a negligence action against the manufacturer of a product. See, e.g., Jarrell [**8] v. Monsanto Co. (1988), Ind. App., 528 N.E.2d 1158; Pfisterer v. Grisham (1965), 137 Ind. App. 565, 210 N.E.2d 75; MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050. Such an action is not subject to the terms of the Indiana Product Liability Act; rather, it is a common law action. Koske, supra, 551 N.E.2d at 443. In turn, the manufacturer may raise the defense of incurred risk. See Pfisterer, supra. In a negligence action, the defense of incurred risk is specifically subject to the terms of the Comparative Fault Act. See IND. CODE 34-4-33-2(a).
As all the parties to this dispute correctly point out, incurred risk involves a mental state of venturousness on the part of the actor against whom it is asserted, and requires a subjective analysis of the actor’s actual knowledge and voluntary acceptance of the risk. Get-N-Go, supra; Power v. Brodie (1984), Ind. App., 460 N.E.2d 1241; Kroger Co. v. Haun (1978), 177 Ind. App. 403, 379 N.E.2d 1004. As with the parties’ dispute over incurred risk in the context of a strict liability theory, the question here revolves around the proper definition of the risk that may or may not have been incurred.
[**9] As we have already discussed, by signing the release in the sales slip, Moore incurred the risk that her bindings would not release under all circumstances and that she might suffer injuries in the event of a failure to release. This was merely an acknowledgement of the laws of physics, however. There is no evidence Moore knew of any alleged negligent design of the bindings. Salomon argues vigorously that Indiana case law defines the risk as solely the risk of injury, not the risk of negligence. 3 Salomon is mistaken.
3 Salomon and Sitzmark make much of the voluntariness of Moore’s actions (i.e., purchasing the bindings, signing the release, and skiing for pleasure) in incurring the risk of her bindings failing to release. It is hornbook law that [HN6] actions which are not truly voluntary do not amount to an incurrence of risk. See, e.g., Get-N-Go, supra; Richarson v. Marrell’s (1989), Ind. App., 539 N.E.2d 485, trans. denied; St. Mary’s Byzantine Church v. Mantich (1987), Ind. App., 505 N.E.2d 811, trans. denied. Moore’s actions were indeed voluntary, but this is immaterial; the proper definition of the risk is the dispositive issue in this case.
[**10] In Pfisterer, supra, the plaintiff lost part of her finger while using a slide at the defendants’ resort park. The plaintiff had used slides before, but had never used the slide which injured her prior to the time of injury. In discussing the defense of incurred or assumed risk, the court held the plaintiff “assumed or incurred the risks inherent and incident to the use of this slide, but she did not assume or incur the risk that the slide might be defectively constructed. [She] could not assume or incur the risk of a latent defect of which she had neither notice nor knowledge, either express or implied.” 4 Pfisterer, supra, 137 Ind. App. at 572, 210 N.E.2d at 78-79.
4 The plaintiff was 13 years old at the time of the accident. The court, however, did not in any way rely on the plaintiff’s youth as a basis for its decision.
In a similar case, the Missouri Court of Appeals held a high school pole vaulter assumed the inherent risks of pole vaulting, but not the risks of the manufacturer’s negligence. McCormick v. Lowe & Campbell Athletic Goods Co. (1940), 235 Mo. App. 612, 144 S.W.2d 866.
[**11] Similarly, the evidence most favorable to Moore reveals she had no knowledge [*1309] of any negligent design flaws in the bindings. Moreover, she had not fallen while using the new bindings prior to the fall which injured her. Even if she had, assuming any defect was latent, she could not incur the risk of the defect without notice of the defect. 5 Moore did not incur the risk of negligent design by Salomon. The trial court’s grant of summary judgment to Salomon on Moore’s negligence theory was improper.
5 [HN7] If any defect was open and obvious under the rule enunciated in Bemis Co. v. Rubush (1981), Ind., 427 N.E.2d 1058, 1061, cert. denied (1982), 459 U.S. 825, 103 S. Ct. 57, 74 L. Ed. 2d 61, Moore may not recover on her negligence theory. Koske, supra, did not abrogate the open and obvious rule, but rather held it inapplicable to actions under the Indiana Product Liability Act. The rule is still applicable in product negligence liability cases. Koske, supra, 551 N.E.2d at 443. See Also Bridgewater v. Economy Eng’g Co. (1985), Ind., 486 N.E.2d 484, modified on other grounds in Get-N-Go, Inc. v. Markins (1990), 550 N.E.2d 748.
[**12] II. EFFECT OF RELEASE
Moore’s negligence complaint against Sitzmark alleged Sitzmark had been negligent in setting, adjusting, or checking the bindings. These alleged acts of negligence are exactly those for which Moore granted Sitzmark a release of liability when she read and signed the sales slip. This release was valid under Indiana law, LaFrenz v. Lake Cty. Fair Bd. (1977), 172 Ind. App. 389, 360 N.E.2d 605, and the trial court properly granted summary judgment to Sitzmark on Moore’s negligence theory.
The trial court’s summary judgment in favor of Sitzmark on Moore’s negligence theory is affirmed. The trial court’s summary judgment in favor of Sitzmark on Moore’s strict liability theory, and in favor of Salomon on both Moore’s strict liability and negligence theories is reversed. The cause is remanded to the trial court for further proceedings consistent with this opinion.
Ratliff, C.J., and Hoffman, P.J., concur.
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Issue of whether avalanches are an inherent risk of skiing in Colorado headed for appeal.
Posted: January 16, 2013 Filed under: Assumption of the Risk, Avalanche, Colorado, Ski Area | Tags: avalanche, Colorado, Lawsuit, Outdoor recreation, Vail, Vail Resort, Winter Park Leave a commentCourt in Vail case holds they are not, and court in Winter Park case holds they are an inherent risk.
A classic issue is going to be working itself up the appeal ladder in Colorado. In the two lawsuits over deaths in
English: A person cutting a sample from a snow pit in order to evaluate the risk of avalanches (Photo credit: Wikipedia)
avalanches, one court has ruled that avalanches are an inherent risk of skiing and therefore under the Co Skier Safety Act you cannot sue. The other court has ruled that avalanches are not covered under the act, and the lawsuit can continue.
The court in Winter Park held that avalanches are an inherent risk. The case against Vail ruled that avalanches are not an inherent risk.
The Vail case is about a 13-year-old boy who was killed in an Avalanche in January of 2012. See Judge: Vail Resorts can be sued for avalanche death. The Intrawest/Winter Park lawsuit is over a death of a man last year also. See Family of avalanche victim sues Winter Park
Probably, because of the different ruling, if the parties do not settle the suit, the Winter Park lawsuit will appeal the case which will affect the Vail litigation eventually.
One effect of the suit is Winter Park changed its release for season passes this year to include a risk that the release covers, and the signor assumes.
Attached is the order in the Winter Park case from the trial court.
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Pennsylvania case reviews the requirements for a valid release in ski accident claim.
Posted: January 14, 2013 Filed under: Assumption of the Risk, Pennsylvania, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, assumption of the risk, Inc., Liberty Mountain Resort, Pennsylvania, Pennsylvania Supreme Court, Release, Season Pass, Ski, Ski Liberty, Ski Liberty Operating Corp, Snow Time Leave a commentCahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344
Release barred claims for injuries from falling on icy slopes
The plaintiff was a season pass holder at the defendant’s resort and an expert skier. While skiing one day he fell on an icy spot created when a snowmaking hydrant malfunctioned and spread water around the area which froze.
Ski Liberty requires season pass holders to sign a release. To get a season pass, skiers first sign up on-line. The online sign up required the plaintiff to click through an acknowledgement of the terms of the season pass which included the release.
A skier then had to sign a written release at the time the season pass was picked up or at the resort. The court specifically set forth the following issues it found important in determining the validity of the release. The release stated the parties intended to be legally bound. That information was conspicuous location above the signature line.
The plaintiff sued because “Ski Liberty was negligent for failing to maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area.” The plaintiff’s injuries were to his face, back, ribs and left hand. The plaintiff’s wife sued for loss of consortium.
What I found interesting was the plaintiff claimed that he did not know there was ice on the slope. I’ve skied through the east and a lot in Pennsylvania. The slopes are all ice, finding snow is the rare occasion.
Summary of the case
The decision starts with the court quoting the Pennsylvania Supreme Court requirements for a valid release.
The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.
The court then found the requirements were met by the release at issue. The plaintiff was not forced to enter the contract but did so voluntarily. There was no evidence of coercion or inducement. The activity, skiing, is recreational and not essential to the plaintiff’s personal or economic well-being. The release does not contravene public policy because the issues were private in nature and did not affect the rights of the public.
The court then reviewed the Pennsylvania ski statute and found the statute pointed out that skiing had risks. The court also found the statute suggested it was the policy of the state of Pennsylvania to enforce the doctrine of assumption of risk who engages in skiing.
The language of the release spelled out with particularity the intent of the parties. The captions clearly advise the signor of the content and purpose of the release and worked as a notice of the risk as well as a release of liability. The release then in bold letters released the defendant of any liability.
The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.
The court then looked at the plaintiff’s argument that a hazardous condition created by the defendant and known by the defendant is not an inherent risk to the sport of skiing. If the risk was not inherent, then the plaintiff argued the release was void and assumption of risk did not apply.
The court did not agree and dismissed the plaintiff’s argument with a great statement.
His [plaintiff’s] experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man-made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport.
So Now What?
The decision outlines quite plainly. What is needed to write a release in Pennsylvania. More importantly it points out several points that courts look for to determine if the defendant as acting in a way as to not hide the release and to make sure the defendant truly understood what they were signing.
Those items include:
· Conspicuous notice of the legal purpose of the document
· Plenty of time to review the release before signing
· Captions that point out the legal ramifications rather than hiding them
· Important language in the release in bold print
· A release written in plain English that is understandable by the signor
· A section that explains the possible risks of the activity
· References in the document to outside sources to assist the signor in understanding the document
Courts hate to uphold releases where there is nothing but the pure letter of the contract to rely upon. If the release clearly informed the signor of the risks and the signor had to have known they were signing a release, then the court can easily decide for the defendant.
Plaintiffs: Timothy Joseph Cahill and Anne Leslie Cahill
Defendants: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.,
Plaintiff Claims: Ski Liberty was negligent for failing to properly maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area.
Defendant Defenses: Release and Assumption of the Risk
Holding: Release was valid and barred the claims of the plaintiffs
 |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
Outdoor Recreation Insurance, Risk Management and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344
Posted: January 14, 2013 Filed under: Legal Case, Pennsylvania, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, LexisNexis, Pennsylvania, Ski Liberty Operating Corp Leave a commentTo Read an Analysis of this decision see: A season pass release for a Pennsylvania ski area was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk and Pennsylvania case reviews the requirements for a valid release in ski accident claim.
Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344
Timothy Joseph Cahill and Anne Leslie Cahill, Plaintiffs v. Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc., Defendants
06-8-29 1
1 The parties consistently used the incorrect caption throughout their pleadings. Apparently, the Defendants misread the caption number on the Writ of Summons issued in this matter to read 06-8-29 rather than the proper caption number of 06-S-29. When the Defendants praeciped for a rule to file a complaint, their Praecipe carried the wrong number. All subsequent pleadings have duplicated that initial error. Accordingly, all are advised that the correct caption number, 06-S-29, should be used on all pleadings henceforth.
COMMON PLEAS COURT OF ADAMS COUNTY, PENNSYLVANIA
2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344
November 14, 2006, Decided
JUDGES: [*1] MICHAEL A. GEORGE, Judge.
OPINION BY: MICHAEL A. GEORGE
OPINION
CIVIL
OPINION
[**345] On January 17, 2004, Timothy Joseph Cahill 2 was skiing at the Liberty Mountain Ski Resort located in Carroll Valley, Adams County, Pennsylvania. 3 Cahill, an experienced skier, enjoyed skiing privileges at Ski Liberty through his purchase of a season pass. Cahill applied for the 2003-2004 season pass through a website operated by Ski Liberty. In order to complete the application, the website required Cahill to acknowledge that he agreed to the terms of a “season pass and advantage card release agreement” by clicking the “okay” box on the web page. The web page included an explanation of the terms which included a release and assumption of risk clause. Cahill’s application on the website was followed up with a written [**346] application which Cahill signed on January 11, 2004. In a conspicuous location immediately above his signature, the written application provides that he agreed to be legally bound by the “Notice of Risk”, “Assumption of Risk”, “Release from Liability”, and “Acknowledgement” provided to him by Ski Liberty. 4
2 Timothy Joseph Cahill will be referred to throughout this pleading as “Cahill.” Plaintiff, Anne Leslie Cahill, [*2] is the wife of Timothy Joseph Cahill and has filed a derivative claim for loss of consortium.
3 Liberty Mountain Ski Resort is owned and operated by Snow Time, Inc., which is a Delaware corporation operating in Adams County. Collectively, the parties will be referred to as “Ski Liberty.”
4 Both the website and the written documents accompanying the application provide as follows:
NOTICE OF RISK
I understand and accept the fact that snowsports (skiing…) in their various forms, including the use of lifts are dangerous with inherent and other risks. These risks include but are not limited to… ice and icy conditions… All of the inherent and other risks of snowsports present the risk of permanent catastrophic injury or death.
ASSUMPTION OF RISK
Understanding and agreeing that snowsports are hazardous, I voluntarily and expressly assume for myself the risk of injury while participating in these sports.
RELEASE FROM LIABILITY
In consideration of the use of the ski area’s facilities, I AGREE NOT TO SUE Ski Liberty Operating Corp., Whitetail Mountain Operating Corp., and/or Ski Roundtop Operating Corp., their owners, agents and employees, if injured while using the facilities, regardless of any negligence [*3] on the part of the Ski Area or its employees.
…
ACKNOWLEDGEMENT
In consideration of being permitted to use the facilities at Liberty Mountain Resort, Whitetail Mountain Resort and Ski Roundtop, I expressly acknowledge:
1. I have read and understand the “Notice of Risk.” “Assumption of Risk,” “Release from Liability,” “Be Aware, Ski with Care,” and “Your Responsibility Code.”
…
3. I voluntarily assume for myself all the risks involved in snowsports.
(emphasis in original)
On the date in question, Cahill fell on an icy area while skiing near the bottom of Eastwind and Strata slopes. He claims that although he was unaware of ice in this area, Ski Liberty knew of the danger since, during the previous [**347] evening, a snow-making water hydrant broke releasing water that ultimately froze into ice because of the cold conditions. As a result of his fall, Cahill claims to have severely injured his face, back, ribs and left hand. A Complaint was filed on March 17, 2006, claiming that Ski Liberty was negligent for failing to properly maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area. Ski Liberty has filed an Answer with New Matter alleging Cahill assumed the [*4] risk of his injuries and released Ski Liberty from all liability. Ski Liberty currently moves for judgment on the pleadings.
[HN1] A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the [P]laintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Bata v. Central Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174, 178 (Pa. 1966). Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. Nederostek v. Endicott-Johnson Shoe Co., 415 Pa. 136, 202 A.2d 72, 73 (Pa. 1964). A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law. Dunn v. Board of Property Assessment, Appeals & Review of Allegheny County, 877 A.2d 504 510 n. 12 (Pa. Cmwlth. 2005). Since I find that the release entitles Ski Liberty to judgment as a matter of law, the Complaint will be dismissed.
[HN2] [**348] Although disfavored [*5] under Pennsylvania law, exculpatory agreements, or releases, are valid provided they comply with the safeguards enunciated by our Superior Court in Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d 437 (Pa. Super. 1978), aff’d, 490 Pa. 428, 416 A.2d 1010 (Pa. 1980) as follows:
The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.
Id. at 439. Applying this criteria, I find the releases executed by Cahill to be valid.
The pleadings support the conclusion that the present agreement is not one of adhesion. Cahill was not forced to enter into the contract but did so voluntarily in order to ski at Liberty Mountain. The agreement between the parties related to Cahill’s engaging in a matter of personal choice without any evidence of coercion or inducement negating [*6] the volitional nature of his act. Clearly, this activity is not essential to Cahill’s personal or economic well-being but, rather, was a purely recreational activity. See Kotovsky v. Ski Liberty Operating Corporation, 412 Pa. Super. 442, 603 A.2d 663 (Pa. Super. 1992) (holding that exculpatory agreement signed by skier injured in downhill race was valid).
[**349] The releases also do not contravene public policy. The clauses were purely private in nature and in no way affected the rights of the public. In fact, [HN3] releases such as that before the Court are actually in furtherance of public policy. Our state legislature, in enacting 42 Pa.C.S.A. § 7102(c) (relating to comparative negligence), specifically recognized that there are inherent risks in the sport of downhill skiing and specifically preserved the doctrine of assumption of risk as it applied to downhill skiing injuries and damages. 42 Pa.C.S.A. § 7102(c). This suggests that it is the policy in this Commonwealth to enforce the doctrine of assumption of risk for persons knowingly engaging in downhill skiing. Kotovsky, 603 A.2d at 666.
The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity [*7] the intent of the parties. The captions clearly advise patrons of the contents and purpose of the document as both a notice of risk and a release of liability. The waiver uses plain language informing the skier that downhill skiing is a dangerous sport with inherent risks including ice and icy conditions as well as other forms of natural or man-made obstacles, the condition of which vary constantly due to weather changes and use. Importantly, after advising a patron of these dangers, the documents unequivocally, in both bold and capital letters, releases Ski Liberty from liability for any injuries suffered while using the ski facilities regardless of any negligence on the part of Ski Liberty, its employees, or agents. The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.
[**350] Cahill received, and acknowledged receipt, of the release from liability on two separate occasions. Notably, the first occasion appears to have been well in advance of the sale thereby allowing him ample opportunity to read it before using the facilities. 5 This factual [*8] background reveals that the intent of the parties was imminently clear and spelled out with the utmost particularity in plain language. Therefore, under the criteria set forth in Zimmer, the releases are valid.
5 The written application reveals an order date for the season pass of October 31, 2003 which circumstantially establishes the date application was submitted by Cahill over the internet.
Perhaps in recognition of the viability of the releases at issue, Cahill does not challenge their validity but, rather, disputes their application to the current facts. In this regard, Cahill suggests that a hazardous condition created by Ski Liberty, and known to exist by the resort, is not an inherent risk to the sport of skiing thereby making the exculpatory agreements and assumption of risk doctrine inapplicable. In support of this argument, Cahill cites Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100 (Pa. Super. 2005). In Crews, the Superior Court reviewed the trial court’s dismissal of a complaint wherein the plaintiff sought damages for injuries received when the plaintiff was involved in a collision with another snowboarder who was a minor under the influence of alcohol. In reversing [*9] the trial court, the Superior Court concluded that the plaintiff did not assume the risk of a collision with an underage drinker on a snowboard since the same is not an inherent risk of the sport of skiing.
Cahill’s reliance on Crews is misplaced. Primarily, Crews specifically limited the issue before the court to an [**351] analysis of the application of the assumption of risk doctrine. Instantly, this Court addresses a separate and distinct issue concerning the validity of an exculpatory agreement. Although these different issues are dealt with simultaneously in a number of court opinions, they are indeed distinguishable and require separate analysis. Compare Zimmer v. Mitchell and Ness, supra with Crews v. Seven Springs Mountain Resort, supra. Accordingly, I find Crews to be inapplicable to the issue of whether the release agreement entered by Cahill is valid.
Since I have found that Cahill knowingly and voluntarily entered into an exculpatory agreement releasing Ski Liberty from both the inherent dangers of downhill skiing and any negligence on the part of Ski Liberty or its employees, it is not necessary to undertake a detailed analysis of application of the assumption of risk doctrine [*10] to the current matter. Nevertheless, as noted, our legislature has expressly preserved assumption of risk as a defense to actions for downhill skiing injuries. 42 Pa.C.S.A. § 7102(c). Moreover, Ski Liberty provided Cahill prior and detailed notice of the dangerous and inherent risks of skiing. The notice is both thorough and exhaustive. Cahill is an experienced skier who obviously has personal knowledge of the inherent dangers involved in the sport. His experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man- [**352] made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport. The self-apparent risks [*11] were accepted by Cahill when he voluntarily entered into a business relationship with Ski Liberty. He chose to purchase a ski ticket in exchange for the opportunity to experience the thrill of downhill skiing. In doing so, he voluntarily assumed the risks that not only accompany the sport but may very well add to its attractiveness.
Since I find the exculpatory agreement valid, Cahill’s claim cannot be sustained. Similarly, Mrs. Cahill’s derivative claim for loss of consortium must also automatically fail as a matter of law. See Kiers by Kiers v. Weber National Stores, Inc., 352 Pa. Super. 111, 507 A.2d 406 (Pa. Super. 1986); Scattaregia v. Shin Shen Wu, 343 Pa. Super. 452, 495 A.2d 552 (Pa. Super. 1985); and Little v. Jarvis, 219 Pa. Super. 156, 280 A.2d 617 (Pa. Super. 1971).
For the foregoing reasons, Defendants’ Motion for Judgment on the Pleadings is granted.
BY THE COURT:
MICHAEL A. GEORGE
Judge
Date filed: November 14, 2006
ORDER
AND NOW, this 14<th> day of November, 2006, for the reasons set forth in the attached Opinion, Defendants’ Motion for Judgment on the Pleadings is granted. The Prothonotary is directed to enter judgment in favor of the Defendants, Ski Liberty Operating Corp. and Snow Time, Inc.
BY THE COURT:
MICHAEL A. GEORGE
Judge
2012-2013 In bound ski/board fatalities
Posted: January 9, 2013 Filed under: Avalanche, California, Colorado, Idaho, Michigan, Ski Area, Skiing / Snow Boarding | Tags: alpine Meadwos, Boyne Highlands Resort, Copper Mountain, Donner Ski Ranch, helmet, Keystone Resort, Keystone Ski Resort, SEATTLE, Ski, ski season, Snowboard, Snowmass, Squaw Valley Ski Resort, Sun Valley, Sun Valley Idaho, Sun Valley ski resort, Vail, Vail Colorado Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
Several Corrections have been made to items reported earlier.
If this information is incorrect or incomplete please let me know. This is up to date as of January 8, 2013. Thanks.
Skiing and Snowboarding are still safer than your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks and to study.
2012 – 2013 Ski Season Deaths
Red is a probable death due to medical issues unrelated to skiing
Dark blue is a death of an employee while working
Tab through the Table to See the Entire Table
| # | Date | State | Resort | Where | How | Cause | Ski/Board | Age | Sex | Name | Home town | Helmet | Reference | ||
| 1 | 11/29/12 | ID | Sun Valley ski resort | Bald Mountain Chairlift | Fell off (Medical?) | 56 | M | Dana Mower | Sun Valley, ID & Seattle, WA | http://rec-law.us/Vi4ims | http://rec-law.us/TyVnKu | ||||
| 2 | 12/1/12 | CO | Keystone Resort | River Run Gondola Maze | Standing in Maze (Medical) | Skier | 66 | M | Rex Brian Burton | Castle Rock, CO | http://rec-law.us/SCZHXJ | http://rec-law.us/YkDioj | http://rec-law.us/UjBMfK | ||
| 3 | 12/2/12 | MI | Boyne Highlands Resort | Camelot, (Beginner) | fell within the slope boundaries and did not collide with any type of obstacle | . | Boarder | 17 | F | Kasandra Knapp | Alanson, MI | http://rec-law.us/11JFVOo | |||
| 4 | 12/9 | CO | Vail | Born Free trail | Hiking before resort opened (Medical) | 61 | M | Denver | http://rec-law.us/Zg0OC1 | ||||||
| 5 | 12/9 | CO | Vail | Eagle Bahn Gondola (Medical) | 63 | M | Douglas Voisard | Vail | http://rec-law.us/Zg0OC1 | ||||||
| 6 | 12/21 | CA | Squaw Valley | KT-22 | strike the tree, hitting the left side of his head | Skier | 71 | M | Theodore Stanley Sorensen | Auburn, CA | Yes | http://rec-law.us/10ctrSt | |||
| 7 | 12/24 | CA | Donner Ski Ranch | Avalanche | Boarder | 49 | M | Steven Mark Anderson | Hirschdale | http://rec-law.us/UCaHJz | http://rec-law.us/Sgjsbi | ||||
| 8 | 12/24 | CA | Alpine Meadows | Sherwood Bowl | Avalanche | Skier | 53 | M | Bill Foster | http://rec-law.us/13eiU72 | http://rec-law.us/VGsqh5 | ||||
| 9 | 12/30 | CO | Snowmass | Hanging Valley Headwall | Avalanche | Swept over cliff | Skier | 49 | F | Patricia “Patsy” Hileman | http://rec-law.us/RCv6fd | http://rec-law.us/VOCr8H | |||
| 10 | 1/4 | CO | Copper Mountain | Vein Glory | Hit tree | M | Tristan Bartlett | Houston, TX | No | http://rec-law.us/RCy03u | http://rec-law.us/VyzVnU | http://rec-law.us/WoJEf5 |
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
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Ohio adopts the requirement that a skier assumes the risk of a collision with another skier.
Posted: January 7, 2013 Filed under: Assumption of the Risk, Ohio, Skier v. Skier | Tags: Ohio, Ohio Supreme Court, Risk, Ski, Ski Resort, Sports, Supreme Court, Winter sport Leave a commentHorvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872
In order to recover in a collision on the ski slope the plaintiff must prove the defendant’s actions were reckless or intentional.
This case is between an injured adult and a young snowboarder. The snowboarder and his friends were on the same slope as the adult and his friends. The snowboarders went through the terrain park and upon exiting collided with the plaintiff.
The plaintiff sued for his injuries. The trial court dismissed the complaint based on the assumption of the risk. The plaintiff appealed, and the appellate court reversed the trial court agreeing with the plaintiffs that the Ohio statute created liability on the part of skiers and boarders for any collision.
The Ohio Supreme Court also sent the case back to the trial court but only to determine if the actions of the defendant snowboarder were reckless or intentional. The Supreme Court found that the statute in question, Ohio R.C. 4169.08 or 4169.09 only applied to the ski areas and did not apply to skiers and boarders.
So?
Once the Supreme court held that the statute did not apply, the legal issue was easily decided. The statute in question stated that skiing was a hazardous sport regardless of the safety measures that could be taken.
Under Ohio’s law on sports had held that:
[w]here individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either reckless or intentional
In Ohio, primary assumption of the risk means that a “defendant owes no duty whatsoever to the plaintiff.” The assumption is limited to those risks directly associated with the activity. “To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.”
The court then held:
Accordingly, we hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.
So Now What?
Ohio joins most other states with ski areas that require more than simple negligence on the part of the defendant for the plaintiff to recover for a collision on the slopes.
Without this standard of care, the risk of the sport would be totally removed, and skiers and boarders would enter a turnstile before they could enter the slope.
All sports have risk and if you are not willing to accept the risk of the sport then you should search for a sport that has risks that are what you can deal with. Checkers or chess are what I would suggest, although you could be hit by an angry knight if your opponent loses their temper.
Ski Area: Boston Mills Ski Area
Plaintiffs: Angel Horvath and Eugene Horvath
Defendants: David Ish, Tyler Ish and their cousins
Plaintiff Claims: Plaintiff had acted negligently, carelessly, recklessly, willfully, and wantonly in causing the collision with Defendant
Defendant Defenses: Assumption of the Risk
Holding: Reversed and sent back to determine if the defendant acted intentionally or recklessly when he collided with the plaintiff.
| Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Outdoor Recreation Insurance, Risk Management, and Law
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Horvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872
Posted: January 7, 2013 Filed under: Assumption of the Risk, Legal Case, Ohio, Skier v. Skier | Tags: David, Horvaths, Ohio, Ohio Supreme Court, Ski, Ski Resort, Summary judgment Leave a commentTo Read an Analysis of this decision see: Ohio adopts the requirement that a skier assumes the risk of a collision with another skier.
Horvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872
Horvath Et Al., Appellees, v. Ish Et Al., Appellants.
No. 2011-1089
2012 Ohio 5333; 2012 Ohio LEXIS 2872
April 25, 2012, Submitted
November 20, 2012, Decided
NOTICE:
THIS SLIP OPINION IS SUBJECT TO FORMAL REVISION BEFORE IT IS PUBLISHED IN AN ADVANCE SHEET OF THE OHIO OFFICIAL REPORTS.
PRIOR HISTORY: [**1]
APPEAL from the Court of Appeals for Summit County, No. 25442, 194 Ohio App. 3d 8, 2011 Ohio 2239, 954 N.E.2d 196.
Horvath v. Ish, 194 Ohio App. 3d 8, 2011 Ohio 2239, 954 N.E.2d 196, 2011 Ohio App. LEXIS 1907 (Ohio Ct. App., Summit County, 2011)
DISPOSITION: Judgment affirmed.
CORE TERMS: skier, skiing, sport, ski-area, collision, ski, inherent risks, tramway, negligence per se, slope, ski area, passenger, reckless, standard of care, statutory duties, statutory schemes, owe, common law, summary judgment, owed, duty of care, personal injury, refrain, trail, ordinary care, general assembly, reasonable care, recreational, enumerated, sentence
HEADNOTES
Torts–Sport or recreational activity–Skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.
SYLLABUS
OF THE COURT
Skiers assume the ordinary risks of skiing, which include collisions with other skiers and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.
COUNSEL: Paul W. Flowers Co. and Paul W. Flowers; and Sennett Fischer, L.L.C., and James A. Sennett, for appellees.
Gallagher Sharp, Timothy J. Fitzgerald, and Jeremy V. Farrell, for appellants.
JUDGES: LUNDBERG STRATTON, J. O’CONNOR, C.J., and O’DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. PFEIFER, J., concurs in part and dissents in part.
OPINION BY: LUNDBERG STRATTON
OPINION
Lundberg Stratton, J.
I. Introduction
[*P1] The issue before the court is what duty or standard of care is owed by one skier to another for purposes of determining tort liability. We hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.
[*P2] The court of appeals reversed the trial court’s grant of summary judgment in favor of Ish and remanded the case to the trial court [**2] to determine whether Ish had violated any duties under R.C. 4169.08 or 4169.09 and if he did, whether negligence per se applied. The court of appeals also held that a genuine issue of material fact existed whether Ish was reckless. Horvath v. Ish, 194 Ohio App.3d 8, 2011 Ohio 2239, 954 N.E.2d 196, ¶ 18 (9th Dist). We agree that there is a genuine issue of material fact, but only whether Ish’s actions were more than negligent, that is, whether his actions were reckless or intentional under the common law. Therefore, we affirm the judgment of the court of appeals, albeit on somewhat different grounds, and remand the case to the trial court for proceedings consistent with our opinion.
II. Facts and Procedural History
[*P3] On March 6, 2007, Angel Horvath and Eugene Horvath (the couple were married after the accident but before the complaint was filed) were skiing at Boston Mills ski resort. David Ish was snowboarding at Boston Mills on that same date, with his brother, Tyler, and their cousins. In the early evening, Angel and Eugene were skiing down Buttermilk Hill. David, Tyler, and their cousins were snowboarding on the same hill. David and his relatives proceeded through a terrain park 1 [**3] and then reentered Buttermilk Hill, where David and Angel collided. Angel was injured in the accident.
1 A terrain park is an area where snowboarders and skiers can do tricks or stunts using various features including jumps, rails, and half-pipes. See R.C. 4169.01(I).
[*P4] The Horvaths filed a complaint against David Ish and his parents, alleging that David had acted negligently, carelessly, recklessly, willfully, and wantonly in causing the collision with Angel.
[*P5] The Ishes filed a motion for summary judgment, arguing that skiers are subject to primary assumption of the risk, which means that a defendant owes no duty of ordinary care to plaintiff. Thus, the Ishes argued that in order to recover, the Horvaths were required to prove that David had acted recklessly or intentionally in causing the collision. The Ishes further asserted that there was no evidence that David’s actions were reckless or intentional.
[*P6] In opposing the Ishes’ motion for summary judgment, the Horvaths argued that R.C. 4169.08(C) imposes specific duties on skiers and that breaching those duties is negligence per se. The trial court granted the Ishes’ motion for summary judgment.
[*P7] In a two-to-one decision, the court of appeals [**4] reversed the judgment of the trial court, stating that “[b]y reading R.C. 4169.08(C) in context with 4169.09, we find that it is evident that the legislature intended that skiers would be liable for injuries caused to others while skiing.” Horvath, 194 Ohio App.3d 8, 2011 Ohio 2239, 954 N.E.2d 196, ¶ 13. The court of appeals remanded the cause to the trial court to determine whether David Ish’s actions violated any of the responsibilities described in R.C. 4169.08(C) and, if so, whether any such violation invoked the doctrine of negligence per se. Id. at ¶ 14.
[*P8] This case is before this court pursuant to the acceptance of the Ishes’ discretionary appeal. 129 Ohio St. 3d 1503, 2011 Ohio 5358, 955 N.E.2d 386.
III. Analysis
R.C. Chapter 4169
[*P9] We begin our analysis by determining whether R.C. 4169.08 and 4169.09 apply to personal-injury litigation between skiers.
[*P10] When interpreting a statute, a court’s paramount concern is legislative intent. State ex rel. United States Steel Corp. v. Zaleski, 98 Ohio St.3d 395, 2003 Ohio 1630, 786 N.E.2d 39, ¶ 12. “[T]he intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express [**5] plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation ” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. However, “[i]n reviewing a statute, a court cannot pick out one sentence and disassociate it from the context, but must look to the four corners of the enactment to determine the intent of the enacting body.” State v. Wilson, 77 Ohio St.3d 334, 336, 1997 Ohio 35, 673 N.E.2d 1347 (1997). “A court must examine a statute in its entirety rather than focus on an isolated phrase to determine legislative intent.” Massillon City School Dist. Bd. of Edn. v. Massillon, 104 Ohio St.3d 518, 2004 Ohio 6775, 820 N.E.2d 874, ¶ 37.
[*P11] See also R.C. 1.42. With this guidance in mind, we examine R.C. Chapter 4169 in its entirety to determine whether R.C. 4169.08 and 4169.09 apply to personal-injury litigation between skiers.
[*P12] R.C. 4169.02 established a ski-tramway board that is authorized to create rules under R.C. Chapter 119 relating to “public safety in the construction, maintenance, mechanical operation, and inspection of passenger tramways.” 2 R.C. 4169.03 requires that a tramway must be registered [**6] with the board before it can be operated. R.C. 4169.04 provides that tramways must be inspected. R.C. 4169.05 authorizes the board to hear complaints that the construction, maintenance, or mechanical operation of a tramway endangers public safety. R.C. 4169.06 permits a board member to suspend the operation of a tramway if the board determines that an “immediate danger exists.” R.C. 4169.07 provides that ski-area operators are responsible for any tramway they construct and for the maintenance and operation of a passenger tramway in the operator’s ski area. R.C. 4169.07 also states that passengers have certain enumerated responsibilities regarding their use of tramways. R.C. 4169.99 provides that ski-area operators are subject to a monetary fine if they fail to register their tramway with the board, fail to comply with an order from the board, or fail to comply with a rule issued by the board.
2 A “passenger tramway” is “a device used to transport passengers uphill, whether on skis or other devices or without skis or other devices, or in cars on tracks or suspended in the air, by the use of steel cables, chains, or belts or by ropes, and that is usually supported by trestles or towers [**7] with one or two spans.” R.C. 4169.01(F). Chair lifts, rope tows, and conveyors are passenger tramways. R.C. 4169.01(F)(3), (5), and (7).
[*P13] R.C. 4169.08 insulates ski-area operators from liability for injuries that arise from the inherent risks of skiing and otherwise defines certain responsibilities applicable to ski-area operators and ski-area visitors. R.C. 4169.09 addresses the liability of ski-area operators and ski-area visitors for failing to comply with the responsibilities enumerated in R.C. 4169.08(C).
[*P14] And, finally, R.C. 4169.10 immunizes ski-area operators for damages suffered by a person who was committing a theft at the time the person suffered the loss.
[*P15] It is evident that R.C. Chapter 4169, when viewed in its entirety, addresses certain obligations and limitations on liability pertaining to ski-area operators, as well as the relationship between ski-area operators and ski-area visitors. Consequently, neither R.C. 4169.08 nor 4169.09 apply to personal-injury litigation between skiers.
[*P16] Our conclusion is confirmed when we examine R.C. 4169.08 and 4169.09 in greater detail. R.C. 4169.08(A)(1) provides that “the general assembly recognizes that skiing as a recreational sport [**8] is hazardous to skiers regardless of all feasible safety measures that can be taken. It further recognizes that a skier expressly assumes the risk of and legal responsibility for injury, death, or loss to person or property that results from the inherent risks of skiing.” R.C. 4169.08(A)(1) then provides a nonexhaustive list of conditions (e.g., slush) or objects (e.g., out-of-bounds barriers) that are inherent risks of skiing. R.C. 4169.08(A)(2) and (3) provide that ski-area operators are not liable for the death of or injury to ski-area visitors that occur in a freestyle terrain or tubing park, subject to certain qualifications. Thus, R.C. 4169.08(A) effectively insulates ski-area operators from personal-injury lawsuits that arise from the inherent risks of skiing. See Stone v. Alpine Valley Ski Area, 135 Ohio App.3d 540, 545, 734 N.E.2d 888 (11th Dist.1999); Otterbacher v. Brandywine Ski Ctr., Inc., 9th Dist. No. 14269, 1990 Ohio App. LEXIS 4582, 1990 WL 72327, *4 (May 23, 1990).
[*P17] R.C. 4169.08(B) and (C) also state that ski-area operators and skiers have certain enumerated responsibilities. For example, ski-area operators must mark certain snowmaking equipment, and skiers must ski within the limits of their [**9] ability. R.C. 4169.08(B)(1) and (C)(1). And R.C. 4169.09 states that a “ski area operator * * * or skier is liable for injury, death, or loss to person or property * * * caused by the operator’s * * * or skier’s failure to fulfill any of the responsibilities required by this chapter.” Therefore, reading R.C. 4169.08(B) and (C) in context with R.C. Chapter 4169, we find that the responsibilities of ski-area operators and ski-area visitors are reciprocal. In other words, the General Assembly intended that ski-area operators owe skiers certain enumerated responsibilities, and in return skiers owe ski-area operators certain enumerated responsibilities. Thus, we hold that R.C. 4169.08(C) does not create a duty of care that applies between skiers.
[*P18] Accordingly, we hold that R.C. Chapter 4169, and in particular, R.C. 4169.08 and 4169.09, do not apply to personal-injury litigation between skiers.
Common Law
[*P19] Having determined that R.C. Chapter 4169 does not apply to personal-injury litigation between skiers, we turn to the common law to determine the proper standard of care applicable between skiers. This court has held that “[w]here individuals engage in recreational or sports activities, they [**10] assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either reckless or intentional as defined in [2 Restatement of the Law 2d, Torts, Section 500, and 1 Restatement of the Law 2d, Torts, Section 8A (1965)].” Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus; see also Thompson v. McNeill 53 Ohio St.3d 102, 559 N.E.2d 705. “Obviously, without our stating so, in Marchetti and Thompson we applied ‘primary’ assumption-of-risk principles in limiting the defendant’s liability.” Gentry v. Craycraft, 101 Ohio St.3d 141, 2004 Ohio 379, 802 N.E.2d 1116, ¶ 11. Primary assumption of the risk means that a defendant owes no duty whatsoever to the plaintiff. Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 431-432, 1996 Ohio 320, 659 N.E.2d 1232 (1996).
[*P20] Clearly, skiing is a sport or recreational activity. However, “only those risks directly associated with the activity in question are within the scope of primary assumption of risk.” Id. at 432, citing Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 3 Ohio Law Abs. 164, 147 N.E. 86 (1925). “To be covered under the [primary-assumption-of-the-risk] doctrine, the risk [**11] must be one that is so inherent to the sport or activity that it cannot be eliminated.” Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005 Ohio 7009, 844 N.E.2d 408, ¶ 19 (6th Dist), citing Westray v. Imperial Pools & Supplies, Inc., 133 Ohio App. 3d 426, 432, 728 N.E.2d 431 (6th Dist.1999). Where the risk at issue is not inherent, then a negligence standard applies. See Gallagher at 432; see also Pope v. Willey, 12th Dist. No. CA2004-10-077, 2005 Ohio 4744, 2005 WL 2179317 (colliding with a truck on a road is not an inherent risk of riding an all-terrain vehicle); Goffe v. Mowell, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308, 1999 WL 55693 (Feb. 5, 1999) (faulty racetrack design is not an inherent risk of go-cart racing).
[*P21] The Supreme Court of Pennsylvania has recognized that “other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions. As anyone who has ever undertaken the sport of skiing is painfully aware, it is a sport in which it is common for the participants to lose control.” Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 511, 762 A.2d 339 (2000). Other courts have also recognized that collisions [**12] between skiers are an inherent risk in the sport of skiing. See Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790, 793 (Minn.App.2007); Cheong v. Antablin, 16 Cal.4th 1063, 1069, 68 Cal. Rptr. 2d 859, 946 P.2d 817 (1997); Gern v. Basta, 809 N.Y.S.2d 724, 725, 26 A.D.3d 807 (2006). We agree that collisions between skiers are an inherent risk of skiing.
[*P22] Accordingly, we hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.
IV. Conclusion
[*P23] The judgment of the court of appeals is affirmed, albeit on somewhat different grounds. We agree that there is a genuine issue of material fact to be considered, but only with regard to whether Ish’s actions were more than negligent, that is, whether he acted recklessly or intentionally. Because a genuine issue of fact remains, the court of appeals was correct in holding that the trial court erred in granting summary judgment. Therefore, we affirm the appellate court’s judgment, and we remand this cause to the trial court for further proceedings in accordance with this opinion.
Judgment affirmed.
O’Connor, C.J., and [**13] O’Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Pfeifer, J., concurs in part and dissents in part.
CONCUR BY: PFEIFER (In Part)
DISSENT BY: PFEIFER (In Part)
DISSENT
Pfeifer, J., concurring in part and dissenting in part.
[*P24] I concur in the majority’s judgment affirming the appellate court’s decision to reverse the trial court’s granting of summary judgment. However, I do not agree with the majority’s baffling interpretation of R.C. 4169.08 and 4169.09. I also do not agree that there is no common-law duty of care between skiers. If legal issues were ski slopes, the one raised in this case would be a bunny hill. Somehow, the majority has careened down the hill and wound up smashed through the wall of the lodge.
A Skier’s Statutory Duties
[*P25] The fact that R.C. Chapter 4169 tends to limit the liability of ski-area operators from liability for injuries suffered by skiers does not mean that it leaves skiers without protection from other skiers. It makes perfect sense that a piece of legislation that shields ski-area operators from liability would also set forth a duty of care between skiers that would leave skiers, not ski facilities, liable for injuries they cause other skiers. Other states-Colorado (Colo.Rev.Stat.Ann. 33-44-109), [**14] Idaho (Idaho Code 6-1106), Maine (32 Maine Rev.Stat.Ann. 15217), Michigan (Mich.Comp.Laws Ann. 408.344), New Mexico (N.M.Stat.Ann. 24-15-10), and West Virginia (W.Va. Code Ann. 20-3A-8), for instance, manage to achieve that balance in their ski-safety statutory schemes. That balance is part of the prevailing view in states with ski statutes:
In a skier collision case, the laws differ from state to state on the duty of care one skier owes to another. The jurisdictions can be divided into two classifications. The prevailing view holds skiers to a standard of reasonable care to avoid injury to another skier. The standard of care is usually founded on a statutory principle obliging a skier to exercise reasonable care and to yield the right of way to the skier below. One skier does not assume the risk of another’s negligence; a skier collision is not a risk “inherent” in the sport as skiing is not a contact sport.
46 American Jurisprudence Proof of Facts 3d 1, Liability of Skier for Collision with Another Skier, Section 2 (1998).
[*P26] The duties between skiers, understood since Norwegians first strapped planks to their feet 4,500 years ago–ski under control and do not run into another skier, among [**15] others–are now part of Ohio statutory law. Those duties are set forth in R.C. 4169.08:
(C) A skier shall have the following responsibilities:
(1) To know the range of the skier’s ability to negotiate any slope or trail or to use any passenger tramway that is associated with a slope or trail, to ski within the limits of the skier’s ability, to ski only on designated slopes and trails, to maintain control of speed and course at all times while skiing, to heed all posted warnings, and to not cross the track of a passenger tramway except at a designated area;
(2) To refrain from acting in a manner that may cause or contribute to the injury of another person, to refrain from causing collision with any person or object while skiing, and to not place any object in a ski area that may cause another skier or a passenger to fall.
[*P27] Contrary to the majority’s assertion, it is possible for the General Assembly in one statutory chapter to protect ski-area operators from liability while at the same time providing some protection for skiers. R.C. 4169.08(C)(2) specifically states that skiers have responsibilities to avoid causing injuries to or colliding with another person, but the majority states that [**16] those responsibilities are owed to ski-area operators, not other persons. R.C. 4169.08(C)(3) requires a person who is involved in a ski accident that injures another to identify himself before leaving the scene, presumably so that the person causing the collision can live up to his responsibilities.
[*P28] But it is R.C. 4169.09 that makes it crystal clear that a skier is liable for injuries he causes to other skiers by failing to meet the duties set forth in R.C. 4169.08(C): “A * * * skier is liable for injury, death, or loss to person or property caused by the * * * skier’s failure to fulfill any of the responsibilities required by this chapter.” How can the majority ignore this simple statutory statement? How can this mean anything other than that a skier is liable for injuries suffered by another person as a result of the skier’s failure to meet his statutory responsibilities? Why does this sentence appear in the statute if it does not establish responsibilities between skiers?
[*P29] If R.C. 4169.08 sets forth only duties between skiers and ski-area operators, the second sentence in R.C. 4169.09 would be sufficient to shield the ski area from liability. The second sentence of R.C. 4169.09 makes [**17] it clear that the ski-area operator is not liable for a skier’s injuries caused by another skier: “A ski area operator * * * is not liable for injury * * * caused by another’s failure to fulfill any of the responsibilities required of another by this chapter.” In blunt terms, an injured person’s only recourse is against the person who caused the injury.
[*P30] Finally, R.C. 4169.09 states that “[a] * * * skier is not entitled to recover for injury * * * caused by the * * * skier’s failure to fulfill any of the responsibilities required by this chapter.” That is, if a skier’s injuries are caused by his own failure to meet his statutory responsibilities, he has recourse against no one.
[*P31] Read as a whole, R.C. 4169.09 states that if a skier violates his responsibilities, he is liable for injuries caused to another, that the ski-area operator is not liable for those injuries, and that a skier who causes his own injuries is not entitled to recover from another, including a ski-area operator, for his injuries. The statute provides protection from liability for ski-area operators from something they cannot control–the behavior of individual skiers–while at the same time making skiers responsible for [**18] injuries they cause for failing to abide by the basic rules of skiing. Only this interpretation provides meaning to all three of the sentences that make up R.C. 4169.09.
Liability for Breach of Skier’s Statutory Duty in Michigan
[*P32] In Rusnak v. Walker, 273 Mich.App. 299, 729 N.W.2d 542 (2006), the court–a special panel called pursuant to Michigan law to resolve an appellate conflict–addressed whether a skier could sue another skier pursuant to Michigan’s Ski Area Safety Act (“SASA”). The statutory scheme in Michigan is substantially similar to Ohio’s. The Michigan law places duties on skiers to ski safely and not injure other skiers, Mich.Comp.Laws Ann. 408.341 and 408.342, and assigns liability for injuries caused by skiers who violate those duties. (“A skier * * * who violates this act * * * shall be liable for that portion of the loss or damage resulting from that violation”). Mich.Comp.Laws Ann. 408.344.
[*P33] But Michigan’s statutory scheme contains an important provision missing from Ohio’s: it lists “collisions * * * with other skiers” as one of the inherent risks of skiing. Mich.Comp.Laws Ann. 408.342. Such a provision is absent from Ohio’s statutory declaration of the inherent risks [**19] of skiing. R.C. 4169.08(A).
[*P34] Even so, the Michigan court held that despite a statutory recognition that colliding with other skiers is an inherent danger of skiing, a skier could recover for injuries caused by another skier’s failure to live up to the responsibilities set forth in the SASA:
As we have already noted, we hold that the SASA assumption-of-risk provision contains clear and unambiguous language, providing in no uncertain terms that a collision between skiers is an obvious and necessary danger that inheres in the sport of skiing. However, in those cases in which a plaintiff can establish that a defendant violated one of the specific duties imposed by the SASA, the plaintiff can still recover damages to the extent that the defendant’s violations caused the plaintiffs injuries. To state it differently, it is possible, and therefore skiers assume the risk, that a collision can occur between skiers when neither skier is violating his or her duties under the SASA. That is, it is an obvious and necessary danger of skiing that sometimes accidents simply happen. But, again, if it can be shown that the collision resulted from a violation of the act, then the violator is to be held liable [**20] for the damage caused, as provided under [Mich.Comp.Laws Ann.] 408.344.
Rusnak, 273 Mich.App. at 305, 729 N.W.2d 542.
[*P35] The court noted in Rusnak that if it were to hold that there is no liability for injuries to a skier caused by another skier’s failure to meet his or her statutory duties, “the duties and liabilities placed on individual skiers would have no meaning.” Id. at 309. But the majority does in this case what Rusnak warns against, finding that the statutory provision–“A * * * skier is liable for injury, death, or loss to person or property caused by the * * * skier’s failure to fulfill any of the responsibilities required by this chapter”–is meaningless.
Ordinary Care
[*P36] In its remand to the trial court, the court of appeals suggested that the trial court should consider whether David Ish violated any of the duties outlined in R.C. 4169.08(C) and, if so, whether the violation would constitute negligence per se. Horvath v. Ish, 194 Ohio App.3d 8, 2011 Ohio 2239, 954 N.E.2d 196, ¶ 14. Violation of a statutory duty is not necessarily negligence per se, and it is not in this case.
[*P37] To successfully prosecute a claim for negligence, a plaintiff must prove that the defendant owed the plaintiff [**21] a duty, that the defendant breached that duty, and that the breach of the duty proximately caused the plaintiffs injury. Wellman v. E. Ohio Gas Co., 160 Ohio St. 103, 108-109, 113 N.E.2d 629 (1953). “[A] duty may be established by common law, legislative enactment, or by the particular facts and circumstances of the case.” Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 565, 1998 Ohio 184, 697 N.E.2d 198 (1998). In certain instances, the failure to perform a statutory duty is negligence per se, meaning that “the plaintiff has conclusively established that the defendant breached the duty that he or she owed to the plaintiff.” Id.
[*P38] But negligence per se does not follow from every violation of a statutory duty; violation of a statute may simply constitute evidence of negligence. “[T]he distinction between the two depends upon the degree of specificity with which the particular duty is stated in the statute.” Sikora v. Wenzel, 88 Ohio St.3d 493, 496, 2000 Ohio 406, 727 N.E.2d 1277 (2000). As this court put it in Swoboda v. Brown, 129 Ohio St. 512, 196 N.E. 274 (1935), paragraph four of the syllabus:
The distinction between negligence and “negligence per se” is the means and method of ascertainment. The former must [**22] be found by the jury from the facts, the conditions, and circumstances disclosed by the evidence; the latter is a violation of a specific requirement of law or ordinance, the only fact for determination by the jury being the commission or omission of the specific act inhibited or required.
That is, when a statute requires performance of specific acts, a jury need only determine whether the specific acts were performed, and if it determines that they were not performed, the defendant is negligent per se; but when the statute instead sets forth general rules of conduct that must be followed, a jury must use its judgment in evaluating the circumstances to determine whether the defendant was negligent. In the latter instance, the typical duty of care for negligence applies:
Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application [**23] and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case.
Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440 (1954), paragraph one of the syllabus.
[*P39] In this case, the defendant may have violated several of the responsibilities of R.C. 4169.08(C)(1) and (2): failing to ski “within the limits of [his] ability,” failing to “maintain control of [his] speed and course,” failing to “refrain from acting in a manner that may cause or contribute to the injury of another person,” and failing “to refrain from causing collision with any person or object while skiing.” None of the defendant’s violations could be established from the determination of one fact by a trier of fact; the trier of fact would need to consider “the facts, the conditions, and circumstances disclosed by the evidence.” Swoboda at paragraph four of the syllabus. The responsibilities set forth in R.C. 4169.08(C)(1) and (2) are akin to the “rule of conduct” discussed in Eisenhuth; in those instances, negligence per se does not apply, and liability is “determined by the application of the test of due care as exercised by a reasonably [**24] prudent person under the circumstances of the case.” Eisenhuth at paragraph three of the syllabus.
[*P40] Thus, the General Assembly has set forth a statutory duty of ordinary care for skiers. Ingrained in that ordinary-care standard is the recognition that skiers are on skis, are on a slippery surface, and are engaged in a somewhat dangerous activity. R.C. 4169.08(C)(1) and (2) do not require expert ability by all skiers; they require common sense and an appreciation of very basic safety rules of skiing. When a skier fails to use ordinary care to meet the responsibilities set forth in R.C. 4169.08(C), he is liable for any injuries caused by his failure to live up to those rules of conduct, pursuant to R.C. 4169.09.
Common Law
[*P41] As stated above, I dissent from the majority’s holding that R.C. 4169.09 does not recognize a cause of action between skiers. I also dissent from the majority’s holding that a skier must prove that another skier was reckless to successfully assert a common-law claim against another skier. The crux of the majority’s holding regarding the common law is that skiers owe no duty to each other because collisions between skiers are one of the inherent risks of skiing. I disagree [**25] and instead would follow the reasoned approach adopted by the Supreme Court of Connecticut in Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 849 A.2d 813 (2004), in which the court held that “the standard of care implicated in the context of the sport of skiing is that of a duty to refrain from unreasonable conduct and that liability may attach for negligent behavior.” Id. at 698.
[*P42] Like many other states, Connecticut has a ski-safety statutory scheme; such statutory schemes are like snowflakes-no two are exactly alike. See, e.g., Frakt & Rankin, Surveying the Slippery Slope: The Questionable Value of Legislation to Limit Ski Area Liability, 28 Idaho L.Rev. 227, 230 (1992), fn.12. The Connecticut statute at issue in Jagger did not contain the declaration found in the Ohio and Michigan statutes that a skier is liable to another skier for injuries caused by the skier’s failure to meet his or her statutory responsibilities. The Connecticut statute did state that collisions with other skiers are an inherent risk of skiing, Conn.Gen.Stat. 29-212; the court in Jagger found that that provision did not apply to lawsuits between skiers. Jagger, 269 Conn. at 697, 849 A.2d 813, fn. 21.
[*P43] [**26] In Jagger, the court applied a four-part test “to evaluate the various policy considerations relevant to the determination of the extent of the defendant’s duty.” Id. at 700. The court had developed the test in Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997), to determine the standard of care applicable to participants in a soccer game. The elements of the test include
“(1) the normal expectations of participants in the sport in which the plaintiff and the defendant were engaged; (2) the public policy of encouraging continued vigorous participation in recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.”
Jagger at 700, quoting Jaworski at 407.
[*P44] As for the first factor, the normal expectations of the participants in the sport, I agree with the Jagger court that although ski collisions can be frequent, skiers expect their fellow skiers to abide by the commonly accepted, fundamental rules of skiing:
While collisions with other skiers are fairly common, frequency of occurrence is not the ultimate touchstone in evaluating the expectations of participants in the sport. [**27] Rather, we perceive the expectations of skiers to be that fellow participants in the sport will conduct themselves in a manner befitting the dangerous potentialities attendant with the sport. Thus, skiers will expect that other skiers will follow the rules and generally accepted practices of the sport of skiing. Indeed, our statutory scheme regarding ski liability confirms that skiers should possess such expectations as they take part in the sport. * * * The normal expectations of skiers will be that fellow skiers will ski in a reasonable and appropriate manner.
Id. at 701-702.
[*P45] Like Connecticut’s, our state’s statutory scheme sets forth responsibilities for skiers that should create in the minds of other skiers the expectation that collisions are not an acceptable part of the sport.
[*P46] Further, skiers are reminded by signs throughout ski areas of appropriate behavior. The Skier’s Responsibility Code, promulgated by the National Ski Areas Association, reminds skiers of common safety rules:
Always stay in control, and be able to stop or avoid other people or objects.
People ahead of you have the right of way. It is your responsibility to avoid them.
You must not stop where you obstruct a trail [**28] or are not visible from above.
Whenever starting downhill or merging into a trail, look uphill and yield to others.
Always use devices to help prevent runaway equipment.
Observe all posted signs and warnings. Keep off closed trails and out of closed areas.
Prior to using any lift, you must have the knowledge and ability to load, ride and unload safely.
http://www.nsaa.org/nsaa/safety/responsibilitycode (accessed Nov. 1, 2012)
[*P47] Unlike in sports like football, basketball, or soccer, in which contact with other participants is part of the very nature of the sport, contact with another individual in skiing is outside the nature of the sport; any contact at all between skiers transforms skiing into an unacceptably dangerous proposition. The expectation among skiers is that their fellow skiers appreciate that safety is essential for everyone’s enjoyment of the sport.
[*P48] As for the second factor-balancing the encouragement of participation in the sport against concern for the safety of participants-I agree with the court in Jagger that encouraging responsible behavior by skiers tends to encourage participation:
As for the second Jaworski factor, we conclude that the balancing of the public policy of [**29] the encouragement of vigorous participation in the sport of skiing and the protection of the safety of its participants weighs in favor of a negligence standard. We believe that requiring skiers to participate in the reasonable manner prescribed by the rules of the sport actually will promote participation in the sport of skiing. Should the threshold for liability be placed at a level that only reckless or intentional misconduct can serve as grounds for liability, many of the potential harms caused by coparticipants in the sport will go unremedied and, therefore, dissuade potential participants from taking part in the sport. Additionally, a standard of reasonableness also operates to protect the safety of participants in the sport of skiing.
Jagger, 269 Conn. at 702-703, 849 A.2d 813.
[*P49] I agree that there is a minimal price to pay, if any, for increased safety on ski slopes. That skiers could feel safer when skiing would tend to inure to the benefit of participation rates. Colorado, whose economy is much more dependent on skiing than Ohio’s, statutorily recognizes the right of skiers to recover damages from other skiers who cause injuries. Colo.Rev.Stat.Ann. 33-44-109 (“a skier is not [**30] precluded under this article from suing another skier for any injury to person or property resulting from such other skier’s acts or omissions. Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another”).
[*P50] The third factor, the potential increase in litigation, is a minimal factor in the analysis. Contact with other skiers is not a regular part of skiing; collisions are rare enough that our courts would not be clogged by claims. As the court recognized in Jagger, this situation might be different in other sports:
For instance, in Jaworski we recognized quite correctly that the imposition of a negligence standard in contact sports would result undesirably in the potentiality of a civil action arising out of any foul, any hit batsman, or any clipping penalty. The same potential for undesirable numbers of civil actions is not present in the context of skiing. As discussed previously, abiding by the rules of the sport of skiing will eliminate the overwhelming majority of contact between skiers.
Id. at 703.
[*P51] The fourth element of the Jaworski test is [**31] a consideration of the law in other jurisdictions. We have the benefit of relying on the court’s well-reasoned decision in Jagger. Jagger relied on Novak v. Virene, 224 Ill.App.3d 317, 321, 586 N.E.2d 578, 166 Ill. Dec. 620 (1991), in which the court stated:
As in the individual sports of running and bicycling, there is the possibility of collisions in downhill skiing. But by one’s participation in the sport, one does not voluntarily submit to bodily contact with other skiers, and such contact is not inevitable. Therefore, the concern that the possibility of a negligence lawsuit would damper vigorous participation is inapplicable to downhill skiing. There is no reason to expand the limited contact sports exception to exempt downhill skiers from negligence liability if they negligently collide with other skiers. Many activities in life are fraught with danger, and absent a specific assumption of risk, one may obtain damages when injured by another’s negligence. Defendant’s conduct should be governed by ordinary negligence standards.
Id. at 321.
[*P52] In a Utah case, Ricci v. Schoultz, 963 P.2d 784, 786 (Utah App.1998), the court held that “a skier does have a duty to other skiers to ski reasonably and within [**32] control. However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty.” Even though there was no negligence in the Ricci case, the case did hold that negligence was the proper legal standard to apply.
[*P53] Interpreting Vermont law in Dillworth v. Gambardella, 970 F.2d 1113, 1123 (2d Cir.1992), the court held that a skier can be liable to another skier for injuries caused by the skier’s negligence, but made clear that not every collision is caused by negligence:
The law is clear. “[T]he standard of conduct needed to discharge a duty of care in any given situation [is] measured in terms of the avoidance of reasonably foreseeable risks to the person to whom such duty is owed.” Green v. Sherburne Corp., 137 Vt. 310, 403 A.2d 278, 280 (1979). Like all others, skiers owe that degree of care an ordinary prudent person would exercise under like or similar circumstances. See La Faso v. La Faso, 126 Vt. 90, 223 A.2d 814, 817-18 (1966). One skier is not the insurer of another skier’s safety nor, absent negligence, is one skier liable to another for inadvertent or accidental contact. See, e.g., LaVine v. Clear Creek Skiing Corp., 557 F.2d 730, 734-35 (10th Cir.1977).
Thus, [**33] a jury might conclude that skiers who lose control even while exercising due care-that is, have breached no duty owed to other skiers-may pose a danger which is inherent, obvious and necessary to participants in the sport of skiing. * * * “If the fall is due to no breach of duty on the part of the defendant, its risk is assumed in the primary sense, and there can be no recovery.” Sunday [v. Stratton Corp], [136 Vt. 293, 302], 390 A.2d 398 [(1978)]. Where the facts on assumption and breach of duty are in dispute and more than one reasonable inference may be drawn from them, the question of negligence is for the jury. See La Faso, 223 A.2d at 819.
Id. at 1122. Although a skier does assume some risks of skiing, as for the behavior of other skiers, “the only risks [a] plaintiff * * * could be said to have assumed are those which defendant in the exercise of reasonable care under the circumstances could have avoided.” Id. at 1123.
[*P54] Further, in Peterson v. Chichester, 157 Vt. 548, 600 A.2d 1326 (1991), the Vermont Supreme Court upheld a jury verdict in a collision-between-skiers case in which the negligence of the defendant and comparative negligence of the plaintiff were at issue. Similarly, [**34] in Stewart v. Rice, 120 Idaho 504, 817 P.2d 170 (1991), the Supreme Court of Idaho decided a case involving the negligence of a skier in a collision between skiers.
[*P55] Applying the four Jaworski factors to the sport of skiing leads to the conclusion reached by the court in Jagger: “the proper standard of care owed by coparticipants in the sport of skiing is that of reasonable care.” Jagger, 269 Conn. at 704, 849 A.2d 813. Even assuming that the majority correctly found that no statutory duty exists between skiers in Ohio, it should have found a common-law duty of reasonable care between skiers, as courts in Connecticut, Illinois, Utah, Vermont, and Idaho have done.
Recklessness
[*P56] I dissent from the majority’s holdings that neither Ohio’s ski statutes nor the common law creates a duty between skiers. An accident like the one in this case is not one that a person would assume would take place when undertaking the pleasant family activity of skiing. Children, seniors, beginners, and handicapped people use ski slopes; to require, as the majority does, no greater standard of care than to refrain from recklessness will make Ohio’s ski areas more dangerous for everyone. “[Contact between skiers [**35] is neither a part of the sport that skiers agree to confront by their participation, nor is it an inevitable byproduct of the sport of skiing.” Jagger at 704.
[*P57] However, the majority admits that the defendant is liable for the plaintiffs injuries if he was acting recklessly on the slopes on the day in question. I agree that if recklessness is the standard of care in this case that there is a genuine issue of fact for a trier of fact to determine. There is testimony establishing that the defendant was uphill of Angel Horvath and merging onto the slope in question, looking backward, and making a sudden change of course when he struck her. Evidence supports the plaintiffs’ contention that the defendant violated numerous statutory responsibilities contained in R.C. 4169.08(C), a statute that sets forth fundamental safety rules for skiers. Those rules are basic and essential for skier safety. The flouting of those rules should be considered by a trier of fact in determining recklessness.
Conclusion
[*P58] The trial judge erred by granting summary judgment in a case that presents factual issues for trial. The case has now snowballed into a case that eviscerates a statutory scheme that has well served [**36] the sport and industry of skiing for a long time. The General Assembly ensured that we owe a greater duty, a duty of ordinary care, to each other. The majority has removed that duty and today has made skiing in Ohio appreciably more dangerous. I trust that Ohio’s skiers will not look to this court, but instead to their common sense, their peers, and information provided by ski areas to determine what is acceptable behavior on Ohio’s ski slopes.
G-YQ06K3L262
Study shows that head injuries are on the rise on the slopes even though more people are wearing helmets
Posted: December 19, 2012 Filed under: Skiing / Snow Boarding | Tags: ACEP, American College of Emergency Physicians, American College of Emergency Room Physicians, CPSC, Cycling, Head injury, helmet, Mouthguard, Occupational safety and health, Risk Homeostasis, skiing, snowboarding Leave a commentRisk Homeostasis?
A study presented at the American College of Emergency Physicians(ACEP) showed that even with the increased use of helmets on ski slopes head injuries had
increased. Overall injuries on the slopes have remained constant during the same period of time.
The study was based on a review of reports to the U.S. Consumer Product Safety Commission‘s National Electronic Injury Surveillance System (NEISS) Overall helmet use increased from 36.7% to 57.99% during the study period.
The study looked at 68,761 head injuries during the 2004 through 2010 ski seasons. Males represented 68.8% of the injuries, snowboarders 57.9%, and riders between the ages of 11-017 representing 47.7%.
The one difference in the study was children under 10 years old, which showed a decrease in hade injuries dropping from 11.7% to 4.6%.
One brought out by the study was helmets are only good for impacts of 12-15 miles per hour. Most people ski and board faster than that. The true value of a helmet, 12-15 mph of impact protection should be put out there so more people understand what a helmet will and will not do. People are sold helmets with the idea that they will prevent head injuries. They only will prevent injuries in that narrow range of 0-15 mph; over that speed, you probably are going to have an injury.
There were two different ideas put forth as two why head injuries increased. The one idea with the least space about it was Risk Homeostasis or Target Risk. The other was:
My assumptions are that those increases parallel the increase in terrain park use and the level of difficulty and risk in these sports over the last decade,” Christensen said, “and also that we’re simply seeing more people reporting head injuries because there’s been more education and awareness around them.
However, Risk Homeostasiswill also support the greater use of terrain parks and the increased level of difficult and increased risk undertaken by skiers and riders.
English: Freestyle skiing jump (Photo credit: Wikipedia)
Do Something
If you sell helmets tell people the truth. Helmets will reduce some head injuries. Helmets probably will not save your life because if you hit something hard enough to cause brain damage that a helmet will protect you from; you are going to receive other injuries that may kill you.
If you wear a helmet understand what your helmet will and will not do to protect your head.
See Head injuries on rise despite helmets
For additional articles on Risk Homeostasis see:
The Theory of Risk Homeostasis: Implications for Safety and Health
Target Risk: Dealing with the danger of death, disease and damage in everyday decisions
For additional articles on Helmets see:
A helmet manufacture understands the issues(Uvex, Mouthguards) http://rec-law.us/xpxX6n
A new idea that makes sense in helmets: the Bern Hard Hat http://rec-law.us/yPerOd
Does being safe make us stupid? Studies say yes. http://rec-law.us/Ao5BBD
Great article on why helmet laws are stupid http://rec-law.us/zeOaNH
Great editorial questioning why we need laws to “protect” us from ourselves. http://rec-law.us/Ayswbo
Helmet death ignited by misconception and famous personalities http://rec-law.us/wfa0ho
Helmets do not increase risk of a neck injury when skiing http://rec-law.us/wPOUiM
Helmets: why cycling, skiing, skateboarding helmets don’t work http://rec-law.us/RVsgkV
National Sporting Goods Association reports that Helmet use at US Ski Areas increased during the 2009-10 ski season http://rec-law.us/zZTzqa
OSHA Officially recommending helmets for ski area employees http://rec-law.us/xo5yio
Other Voice on the Helmet Debate http://rec-law.us/AzaU9Q
Recent UK poll shows that 10% of cyclists would quite biking if there was a compulsory helmet law. http://rec-law.us/t1ByWk
Skiing/Boarding Helmets and what is the correct message http://rec-law.us/AzeCpS
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2012-2013 In bound ski/board fatalities
Posted: December 12, 2012 Filed under: Skiing / Snow Boarding | Tags: fatality, Keystone Resort, Ski, ski area, Ski Resort, skiing, snowboarding, Sun Valley, Sun Valley Idaho, Winter sport Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart If you have a source for information on any fatality please leave a comment.
Several Corrections have been made to items reported earlier.
If this information is incorrect or incomplete please let me know. This is up to date as of December 10, 2012. Thanks.
2012 – 2013 Ski Season Deaths
| # | Date | St | Area | Where | How | Cause | Ski/ Board | Age | Sex | Helmet | Ref | Ref | Ref |
| 1 | 11/29 | ID | Sun Valley ski resort | Bald Mountain Chairlift | Fell off (Medical?) | 56 | M | http://rec-law.us/Vi4ims | http://rec-law.us/TyVnKu | ||||
| 2 | 12/1 | CO | Keystone Resort | River Run Gondola Maze | Standing in Maze (Medical) | Skier | 66 | M | http://rec-law.us/SCZHXJ | http://rec-law.us/YkDioj | http://rec-law.us/UjBMfK | ||
| 3 | 12/2 | MI | Boyne Highlands Resort | Camelot, (Beginner) | fell within the slope boundaries and did not collide with any type of obstacle. | Board | 17 | F | http://rec-law.us/11JFVOo |
Our condolences to the families of the deceased. Our good thoughts to the families and staff at the areas who have to deal with these tragedies.
What do you think? Leave a comment.
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Electronic gadgets including video cameras interfere with Avalanche Beacons
Posted: November 28, 2012 Filed under: Avalanche | Tags: Attorney at law, avalanche, Avalanche Beacons, Avalanches, Go Pro, Jim Moss, Recco, Recco Reflector, Rock climbing, Ski Resort, Video Cameras 2 CommentsBefore you head out, find out what electronics interfere and which ones you should leave in the car or turn off.
This video popped up the other day: Transceiver / Go Pro Interference. It shows a video camera affecting an avalanche beacon. If you wear a beacon, and you should, in or out of bounds, you should know which of your electronics may affect your beacon.
Dale Atkins, an Avalanche Guru and Recco’s Training and Education Manager for North America told me:
English: Rescuer using RECCO R9 detector on training drill in Colorado.
GoPros cause grief to some transceivers (and probably to all), but this is not a surprise, and it’s not the fault of the transceiver companies. All electronic devices generate electromagnetic fields. The problem is more noticeable with GoPros (and likely with other movie cameras, too) than with our cell phones or radios because communication devices have shielding. GoPros, iPods, power lines, ski lift motors, thunderstorms, etc. do not.
These electronic devices (and phenomena) rarely cause problems for a sending transceiver, and typically only a few centimeters of separation are enough. However, receive is another story. Transceiver companies have for a number of years recommended one separate electronic gear from their receiving transceiver by 30 centimeters. However, over the years this “electronic” gear was usually shielded communication devices, so the 30 cm distance was more than sufficient. However, now with other electronic gizmos, like GoPros that are “on” (powered) all the time, I suspect we’ll see a new recommendation from the transceiver companies. It might say something to the effect that these devices be turned off and removed off the searcher. However, that’s my guess.
Reccois a non-beacon avalanche search device. The handheld device locates buried victims based on a small bar that is usually sewn into their clothing. If you are
English: Avalanche rescue search with RECCO detector
looking for ski or mountaineering clothing, I would suggest you look for something that has the Recco Reflector sewn in and a Recco hangtag.
So?
If you ski wearing a beacon, you should pay attention to what is going on with all the battery operating devices you carry.
If you are an Avalanche Beacon manufacturer, you should probably put a notice or warning in your instructions to let people know of the risks.
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Utah Rental Release void because the product was subject to recall
Posted: November 26, 2012 Filed under: Skiing / Snow Boarding, Utah | Tags: Consumer Product Safety Commission, CPSC, GGT Enterprises, Llc; K2 Corporation; Jarden Corporation, Product Recall, Public Policy, Release, Rental Fleet, Rental shop, Ski Bindings, Ski Rentals, U.S. Consumer Product Safety Commission, Utah Leave a commentJozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937
The public policy exception allows the release to be void when the recalled product was not pulled from the rental fleet.
This is a Utah ski rental case. The plaintiff rented skis from the defendant. While skiing, the plaintiff fell injuring her neck. She claimed she fell because the bindings prematurely released. The bindings were manufactured by K2 a subsidiary of the Jarden Corporation.
Prior to the plaintiff’s injury, K2 had notified the Consumer Product Safety Commission and issued a recall for the bindings the plaintiff was using. The recall was based due to a tendency for the bindings to unexpectedly release. The recall was issued by the CPSC and K2 had sent notice of the recall to retail and rental shops.
The plaintiff filed this suit in federal court against the defendant rental shop and the binding manufacture K2. The defendant rental shop filed this motion to dismiss because the plaintiff had signed a release when she rented the recalled skis and bindings.
Summary of the case
The defendant rental shop filed a motion for summary judgment because the plaintiff had signed a release upon renting the skis and bindings. The court first looked at releases and Utah’s law and found Utah allows people to “contract away their rights to recover in tort for damages caused by the ordinary negligence of others.” Under Utah’s law, there are three exceptions that can void a release when:
(1) the release offends public policy,
(2) the release is for activities that fit within the public interest exception, or
(3) the release is unclear or ambiguous.
The court found that the second and third exceptions were not at issue here. The first issue, that releases must be compatible with public policy under Utah’s law. The court looked at the public policy exception to the rule slightly different in Utah than in most other states that allow a release to be voided due to public policy issues.
The court looked at the federal law that created the Consumer Products Safety Commission and created the requirement that products be recalled.
Under 15 U.S.C. § 2064(b), manufacturers, distributors, and retailers are required to notify the United States Consumer Product Safety Commission when they become aware a product (1) fails to comply with applicable safety standards, (2) fails to comply with other rules, regulations, standards, or bans under any acts enforced by the Commission, (3) “contains a defect which could create a substantial product hazard,” or (4) “creates unreasonable risk of serious injury or death.”
The court then stated: “The law requires distributors and retailers to heed recall alerts issued by the Commission and ensure defective products are either fixed or not sold.” Finding this requirement puts an extreme burden on shops, retail or rental when dealing with recalled products.
The rental shop argued that the federal law cannot preempt state law, and state law allows releases. The court agreed, however, the court stated the law did not conflict or preempt the Utah law.
The court went on to say.
The rental of the ski bindings at issue in this case became unlawful once the recall notice became effective. Public policy should not favor allowing a party to insulate itself from harms caused to others arising from unlawful acts.
The said that if a release relieved the retailer of the duty to recall products, then the effect of the law would be nullified and would violate the value of the law. Public policy issues should encourage compliance with laws designed to make products safer not void them.
The court held the rental companies arguments were not valid and denied the motion for summary judgment.
So Now What?
If you get a recall notice, and you are in a retail store, rental shop, or distributor, remove the product from the shelves and/or the rental fleet. Period. The judge in his final sentence stated: “GGT’s preinjury release is unenforceable and invalid as a matter of public policy.” There is no leeway in that statement.
This may create disaster in a small rental shop. Most times the shop has one binding on all of its skis. It makes setting the bindings easier and makes training the employees on setting the bindings much easier also.
It can be a scary situation when you open an email and find you have no rental fleet. You should contact the company immediately and tell them that you are out of business effectively unless they respond and assist you in correcting the entire recalled product or replacing it.
This may be an issue you want to discuss with someone when you are negotiating bindings for your rental fleet.
Product recalls are not minor matter. Any product you have in your store that is subject to a recall is no longer available for sale until after the product has been fixed according to the manufacture’s requirements.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management, and
Outdoor Recreation Insurance, Risk Management, and Law
Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Jozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937
Posted: November 26, 2012 Filed under: Legal Case, Skiing / Snow Boarding, Utah | Tags: Alta Ski Area, CPSC, GGT, Indemnity, Jarden, Jarden Corporation, K2, Park City Utah, Product liability, Product Recal, Salt Lake City, Ski binding, Utah Supreme Court Leave a commentTo Read an Analysis of this decision see: Utah Rental Release void because the product was subject to recall
Jozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937
Laura Jozewicz, Plaintiff, vs. GGT Enterprises, Llc; K2 Corporation; and Jarden Corporation, Defendants.
Case No. 2:09-cv-00215-CW
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
2010 U.S. Dist. LEXIS 53937
June 2, 2010, Decided
June 2, 2010, Filed
CORE TERMS: public policy concern, preinjury, binding, alert, distributor, rental, consumer products, consumer, retailer, citation omitted, ski, risks of injury, skiing, sports, skis, serious injury, manufacturer, recreational, invalidated, safety standards, public policy, unreasonable risk, manufacture, notice, hazard, release agreement, unenforceable, collectively, inventory, rented
COUNSEL: [*1] For Laura Jozewicz, an individual, Plaintiff: Jordan P. Kendell, Robert G. Gilchrist, LEAD ATTORNEYS, EISENBERG & GILCHRIST, SALT LAKE CITY, UT.
For K2, a Delaware corporation, Defendant: Cobie W. Spevak, Gainer M. Waldbillig, LEAD ATTORNEYS, FORD & HUFF LC (SLC), SALT LAKE CITY, UT.
For Jarden, a Delaware corporation, Defendant: Gainer M. Waldbillig, LEAD ATTORNEY, Cobie W. Spevak, FORD & HUFF LC (SLC), SALT LAKE CITY, UT.
For GGT Enterprises, a Utah corporation, Defendant: Adam Strachan, LEAD ATTORNEY, STRACHAN STRACHAN & SIMON, LITIGATION, PARK CITY, UT.
JUDGES: Clark Waddoups, United States District Judge.
OPINION BY: Clark Waddoups
OPINION
MEMORANDUM DECISION AND ORDER
INTRODUCTION
While skiing at Alta ski area, Plaintiff Laura Jozewicz (“Jozewicz”) fell and injured her neck. Jozewicz contends she fell because the binding on her skis unexpectedly released due to a product defect. Jozewicz rented the skis from Defendant GGT Enterprises, LLC (“GGT”). At the time of rental, a recall notice was in effect for the binding, but GGT did not remove the product from its rental inventory. Nevertheless, GGT seeks dismissal of Jozewicz’s negligence claim on the basis that she signed a release from liability at the time she rented [*2] the skis. For the reasons discussed below, the court denies GGT’s motion to dismiss.
FACTUAL BACKGROUND
On March 17, 2008, GGT rented skis to Jozewicz. On March 18, 2008, Jozewicz fell and injured her neck while skiing at Alta ski area. Jozewicz claims her fall occurred when the Marker MI Demo binding on her rental ski released unexpectedly. Jozewicz alleges that Defendants K2 Corporation and Jarden Corporation (collectively “K2/Jarden”) manufactured the ski binding. Prior to Jozewicz’s fall, K2/Jarden notified the United States Consumer Product Safety Commission (“Commission”) regarding the binding, and the Commission subsequently issued a recall alert on May 30, 2007, due to “Unexpected Release, Fall Hazard.” 1 The recall alert stated that “[s]ki shops with these bindings in their rental inventory should not rent this equipment to consumers until it has been upgraded.” 2 The recall further stated that “[s]kiers can unitentionally displace a lever at the rear of the binding,” which “[i]f it is fully displaced, . . . can result in the unexpected release of the binding and possibly cause the user to fall.” 3
1 Recall Alert (May 30, 2007) (Docket No. 29, Ex. A).
2 Id.
3 Id.
Prior to renting her [*3] skis from GGT, Jozewicz signed an “Equipment Rental and Liability Release Agreement,” which states in relevant part:
I understand that the binding system cannot guarantee the user’s safety. In downhill skiing, the binding systems will not release at all times or under all circumstances where release may prevent injury or death, nor is it possible to predict every situation in which it will release. . . .
I understand that the sports of skiing, snowboarding, skiboarding, snowshoeing and other sports (collectively “RECREATIONAL SNOW SPORTS”) involve inherent risks of INJURY and DEATH. I voluntarily agree to expressly assume all risks of injury or death that may result from these RECREATIONAL SNOW SPORTS, or which relate in any way to the use of this equipment. . . .
I AGREE TO RELEASE AND HOLD HARMLESS the equipment rental facility, its employees, owner, affiliates, agents, officers, directors and the equipment manufacturers and distributors and their successors in interest (collectively “PROVIDERS”), from all liability for injury, death, property loss and damage which results from the equipment user’s participation in the RECREATIONAL SNOW SPORTS for which the equipment is provided, or [*4] which is related in any way to the use of this equipment, including all liability which results from the NEGLIGENCE of PROVIDERS, or any other person or cause.
I further agree to defend and indemnify PROVIDERS for any loss or damage, including any that results from claims or lawsuits for personal injury, death, and property loss and damage related in any way to the use of this equipment. 4
GGT claims the release agreement bars Jozewicz’s negligence claim.
4 Equipment Rental & Liability Release Agreement (Docket No. 13, Ex. 2) (emphasis in original).
ANALYSIS
I. STANDARD FOR REVIEW
Defendant GGT brings this motion under Federal Rule of Civil Procedure 12(b)(6). When considering a 12(b)(6) motion, “a court must accept as true all well-pleaded facts, as distinguished from conclusory allegations, and those facts must be viewed in the light most favorable to the nonmoving party.” 5 The complaint must include “enough facts to state a claim to relief that is plausible on its face.” 6 “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim [*5] for which relief may be granted.” 7 Consequently, a court does not look at evidence outside of a pleading to determine such motions. 8 If a court does rely “on material from outside the pleadings, the court converts the motion to dismiss into a motion for summary judgment.” 9 Because the court relies on material outside of the pleadings in this case, the court converts this motion into a motion for summary judgment.
5 Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007) (citation omitted).
6 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
7 Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010) (citation omitted).
8 Dobsen v. Anderson, No. 08-7018, 2008 U.S. App. LEXIS 22820, at *8-9 (10th Cir. Nov. 4, 2008).
9 Id. at *9 (quotations and citation omitted).
II. PREINJURY RELEASES
A. Limitations on Preinjury Releases
Without question, individuals “may contract away their rights to recover in tort for damages caused by the ordinary negligence of others.” 10 The Utah Supreme Court has recognized, however, “that preinjury releases are not unlimited in power and can be invalidated in certain circumstances,” including when (1) the release offends public policy, (2) the release is for activities [*6] that fit within the public interest exception, or (3) the release is unclear or ambiguous. 11 The second limitation is not at issue here because “preinjury releases for recreational activities,” such as skiing, “cannot be invalidated under the public interest exception.” 12 Likewise, the third limitation is not at issue because Jozewicz conceded during oral argument that the release is not unclear or ambiguous. Thus, the prevailing issue in this case is whether a public policy concern overwhelms the effect of the preinjury release that Jozewicz signed.
10 Pearce v. Utah Athletic Found., 2008 UT 13, P 14, 179 P.3d 760, 765 (citations omitted).
11 Id. (citations omitted).
12 Id. P 18.
B. Public Policy Considerations
Preinjury releases must be compatible with public policy to be enforceable. 13 Previously, the Utah Supreme Court has invalidated preinjury releases when they were contrary to public policy set forth in statutory provisions. The court has recognized that “[w]hen . . . the Legislature clearly articulates public policy, and the implications of that public policy are unmistakable, we have the duty to honor those expressions of policy in our rulings.” 14 Thus, in Hawkins v. Peart, the [*7] Utah Supreme Court held that public policy invalidated a preinjury release signed by a parent on behalf of a minor child. 15 The court looked to Utah statute and found that it “provides various checks on parental authority to ensure a child’s interests are protected.” 16 In particular, it found that when a child is injured, statutory law precludes a parent from settling a claim, unless the parent is appointed as conservator for the child. 17 Based on this clear legislative intent to protect a minor’s interest post injury, the court concluded that a preinjury release for a minor child likewise was unenforceable. 18
13 Id. P 15 (citing Rothstein v. Snowbird Corp., 2007 UT 96, P 7, 175 P.3d 560).
14 Rothstein v. Snowbird Corp., 2007 UT 96, P 20, 175 P.3d 560.
15 Hawkins v. Peart, 2001 UT 94, PP 12-13, 37 P.3d 1062.
16 Id. P 11.
17 Id. (citing Utah Code Ann. § 75-5-404 (1993)).
18 Id. PP 12-13.
As applicable to this case, Congress has expressed its concern about product defects that pose a significant risk of injury or death. In an effort to protect the public from such defects, it enacted the Consumer Product Safety Act (the “Act”). The stated purpose of the Act is:
(1) to protect the public against unreasonable [*8] risks of injury associated with consumer products; (2) to assist consumers in evaluating the comparative safety of consumer products; (3) to develop uniform safety standards for consumer products and to minimize conflicting State and local regulations; and (4) to promote research and investigation into the causes and prevention of product-related deaths, illnesses, and injuries. 19
Through this legislation, Congress has stated its intent to create laws that protect the public from unreasonable risk of harm from defective products and to provide a uniform regulatory scheme to promote product safety.
19 15 U.S.C. § 2051(b) (2010).
Under 15 U.S.C. § 2064(b), manufacturers, distributors, and retailers are required to notify the United States Consumer Product Safety Commission when they become aware a product (1) fails to comply with applicable safety standards, (2) fails to comply with other rules, regulations, standards, or bans under any acts enforced by the Commission, (3) “contains a defect which could create a substantial product hazard,” or (4) “creates unreasonable risk of serious injury or death.” 20 Recall alerts arising from such notices are specifically designed to prevent serious [*9] injuries. Under 15 U.S.C. § 2068, manufacturers and distributors are charged with honoring the recall alerts issued by the Commission. The law in effect at the time of Jozewicz’s accident stated:
It shall be unlawful for any person to —
(1) manufacture for sale, offer for sale, distribute in commerce, or import into the United States any consumer product which is not in conformity with an applicable consumer product safety standard under this chapter;
(2) manufacture for sale, offer for sale, distribute in commerce, or import into the United States any consumer product which has been declared a banned hazardous product by a rule under this chapter. 21
20 Id. § 2064(b).
21 Id. § 2068(a)(1)-(2) (2006). This Section was amended on August 14, 2008, after Jozewicz’s injury occurred. Section 2068(a) now prohibits the sale, manufacture for sale, distribution, or importation of any product (1) “that is not in conformity with an applicable consumer product safety rule,” (2) that is subject to a voluntary corrective action, (3) that is an imminent hazard and subject to a Commission’s order, or (4) that is a banned hazardous substance. Id. § 2068(a)(1)-(2) (2010).
Congress enacted the statute to ensure [*10] safe products are provided to the public and to limit the risk of injury. Once a manufacturer, distributor, or retailer reports a defect to the Commission and a recall alert is published, the alert would have no effect if other retailers were not required to take action to correct the defect or remove the product from their inventory. The law requires distributors and retailers to heed recall alerts issued by the Commission and ensure defective products are either fixed or not sold.
Jozewicz argues that Congress’s public policy concern to prevent unreasonable risk of serious injury or death to the public meets the public policy standard set forth by the Utah Supreme Court, and therefore invalidates her release of GGT’s negligence. GGT contends, however, that Congress did not intend for the Consumer Product Safety Act to preempt state law, and no private cause of action exists under 15 U.S.C. § 2064(b). While this is true, this does not nullify the stated public policy concerns that override the right of parties to contract away tort liability. The rental of the ski bindings at issue in this case became unlawful once the recall notice became effective. Public policy should not favor [*11] allowing a party to insulate itself from harms caused to others arising from unlawful acts. Moreover, a decision that public policy causes a preinjury release to be invalid in this case does not cause GGT to be held liable under the Act, nor does it preempt state law. It merely recognizes Congress’s concern to minimize unreasonable risk to the public of serious injury or death. Such a concern is particularly relevant when a latent defect exists of which distributors and retailers are or should be aware, but not a consumer.
The implication of allowing distributors and retailers to contract away liability for noncompliance with established safety standards would increase the risk of injury and would be contrary to Congress’s express public policy concerns. Furthermore, validating the release of liability for noncompliance with Federal law would effectively reduce or eliminate the responsibility that distributors and retailers have to make sure the products they sell or rent are safe. Public policy should encourage compliance with safety laws, not disregard for such laws. Due to a strong public interest in ensuring adherence to recall alerts, the court concludes that GGT’s release is unenforceable [*12] as a matter of public policy.
CONCLUSION
GGT’s preinjury release is unenforceable and invalid as a matter of public policy. For this reason, GGT’s motion is DENIED. 22
22 Docket No. 12.
DATED this 2nd day of June, 2010.
BY THE COURT:
/s/ Clark Waddoups
Clark Waddoups
United States District Judge
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Colorado Ski Mountaineering Cup Race Schedule Announced
Posted: November 23, 2012 Filed under: Racing, Ski Area, Skiing / Snow Boarding | Tags: ArapahoeBasin, CAMP USA, Colorado, Cosmic, Cosmic Cup, la sportiva, Ski Mountaineering, Ski Resort, Ski Trab, skiing, Sports, winter sports, Wolf Creek Leave a comment
Want to be exhausted just watching a race, these men and women can do it.
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12/04/2012 |
COSMIC |
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12/08/2012 |
COSMIC |
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12/14/2012 |
Chapman Hill, Durango CO |
COSMIC |
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Wolf Creek Ski Mountaineering Race presented by Pine Needle Mountaineering |
12/15/2012 |
COSMIC |
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12/18/2012 |
COSMIC |
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01/12/2013 |
COSMIC |
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01/13/2013 |
COSMIC |
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01/26/2013 |
COSMIC Race |
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Race The Divide at Monarch Mt. Presented by Salida Mt. Sports |
01/27/2013 |
COSMIC |
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02/04/2013 |
COSMIC Race |
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02/09/2013 |
COSMIC Race |
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03/02/2013 |
COSMIC Race |
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03/23/2013 |
COSMIC Race |
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04/06/2013 |
COSMIC Race |
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04/20/2013 |
COSMIC |
To see the race schedule go here. Or go to COSMIC Cuplearn more about the races and ski mountaineering.
Get out and watch an amazing sport with amazing atheletes!
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It is that time of year, release stops lawsuit against ski club
Posted: November 19, 2012 Filed under: Illinois, Skiing / Snow Boarding | Tags: AdventureTravel, Attorney at law, Chicago Metropolitan Ski Council, Indianhead Mountain, Jim Moss, RecreationLaw, Release, Ski Racing, skiing Leave a commentMasciola, v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313; 628 N.E.2d 1067; 1993 Ill. App. LEXIS 2011; 195 Ill. Dec. 603
Illinois’s decision holds that the release in question covered the issue complained of by the plaintiff who caused his injuries.
The plaintiff in this case was a member of the Chicago Metropolitan Ski Council, a ski club. The plaintiff entered a race put on by the defendant ski council at Indianhead Mountain, Michigan. To enter the race the plaintiff had to sign a release.
While racing the plaintiff hit a compression area in the race course which caused him to be thrown into telephone poles that marked the finish line. The plaintiff’s injuries were never specified in the decision.
The plaintiff alleged the unsafe conditions of the race course were not contemplated by the release, and the parties were acting under a mutual mistake of fact.
Summary of the case
A mutual mistake of fact is usually a way to void a contract. Remember a contract, which a release is, requires a meeting of the minds. Normally, with a release, you write the release so the meeting of the minds is agreed to when the guest signs the agreement.
If the parties do not agree on the specific issues of a contract, the reasons for a contract, then a contract is void. An example would be party A wants to sell his beat up second car. Party A tells party B that his car is for sale. Party B has never seen the second car and assumes party A is selling his good car; the only one party B, thinks party A, owns.
The contract between party A and party B would be void because of mistake of fact. Party A and Party B never had a meeting of the minds on what was being bought/sold so there was no contract.
Under Illinois’s law, like in most states, releases are disfavored, but upheld if there is no fraud, willful and wanton conduct [on the part of the defendant] or legislation prohibiting releases. If those requirements are met the court next looks at the position of the parties to make sure there is no disparity in the bargaining power between the parties. Here because skiing and ski racing is recreational and the plaintiff did not have to race, there was no disparity.
The next requirement is different.
…the question of whether or not an exculpatory clause will be enforced depends upon whether or not defendant’s conduct and the risk of injury inherent in said conduct was of a type intended by the parties to fall within the scope of the clause.
The risk which caused the injury must not be set out specifically in the release; the release must just show that the risk was contemplated by the parties to the release. The court found the release covered the problems the plaintiff claimed injured him.
So Now What?
Simply put make sure your release has a broad description of the risk intended to be covered by the release. First start with the life-changing events, death, quadriplegia, and work your way done to those things that although not of high severity do occur with high frequency.
If you do keep accident reports (see Why accident reports can come back to haunt you.) go through the reports to identify the risks that should be in your release. Always include the loss of property. Dropped phones while riding a ski lift and lost sunglasses whitewater rafting are probably the number one issue that irritates guests. Cover those issues, other minor issues and major problems in your release.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Masciola, v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313; 628 N.E.2d 1067; 1993 Ill. App. LEXIS 2011; 195 Ill. Dec. 603
Posted: November 19, 2012 Filed under: Illinois, Legal Case, Racing, Skiing / Snow Boarding | Tags: Chicago Metropolitan Ski Council, Indianhead Mountain, Ski Club, Ski Council, Ski Racing, skiing Leave a commentMasciola, v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313; 628 N.E.2d 1067; 1993 Ill. App. LEXIS 2011; 195 Ill. Dec. 603
An analysis of this case can be found at It is that time of year, release stops lawsuit against ski club
David R. Masciola, Plaintiff-Appellant, v. Chicago Metropolitan Ski Council, an Illinois not-for-profit corporation, Defendant-Appellee.
No. 1-91-3909
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
257 Ill. App. 3d 313; 628 N.E.2d 1067; 1993 Ill. App. LEXIS 2011; 195 Ill. Dec. 603
December 29, 1993, Decided
SUBSEQUENT HISTORY: [***1] Released for Publication March 9, 1994. As Corrected August 2, 1994.
PRIOR HISTORY: APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE PADDY H. McNAMARA, JUDGE PRESIDING.
DISPOSITION: AFFIRMED.
COUNSEL: John Thomas Moran, Jr., of Chicago, for appellant.
Pretzel & Stouffer, Chartered, of Chicago (Edward H. Nielsen, Robert Marc Chemers, and Ann S. Johnson, of counsel), for appellee.
JUDGES: RIZZI, TULLY, CERDA
OPINION BY: RIZZI
OPINION
[*314] [**1068] JUSTICE RIZZI delivered the opinion of the court:
Plaintiff, David R. Masciola, filed a complaint against defendant, the Chicago Metropolitan Ski Council (Ski Council) and others. Plaintiff sought damages for personal injuries allegedly sustained by him while he was participating in a ski race sponsored by defendant. Counts I and II of the complaint alleged negligence and willful and wanton conduct, respectively. The trial court dismissed [**1069] count II of the complaint and granted summary judgment to defendant on count I. Plaintiff appeals the trial court’s award of summary judgment. We affirm.
Plaintiff alleges that trial court’s grant of summary judgment was erroneous (1) with respect to both counts of the complaint, on the basis of its finding that an exculpatory clause was enforceable and barred to the complaint, because the unsafe conditions of the racecourse [***2] exceeded the scope of the contemplated risks encompassed by the exculpatory clause which demonstrates that the parties were acting under a mutual mistake of material fact as to the safety of the racecourse; and (2) with respect to count II of the complaint because exculpatory clauses are void and against public policy when applied to willful and wanton conduct.
On December 21, 1985, plaintiff participated in a ski race sponsored by defendant at the ski resort of Indianhead Mountain in Wakefield, Gogebic County, Michigan. As a sponsor of the race, defendant required each participant to sign a “waiver of liability” prior to participating in the race. Plaintiff signed the waiver. The waiver form provided as follows:
The undersigned hereby acknowledges that ski racing is a dangerous sport which can lead to serious injury, or even death. The undersigned hereby understands and agrees to personally assume any and all of the liability and risks of alpine racing.
Further, the undersigned hereby agrees to hold harmless the CHICAGO METROPOLITAN SKI COUNCIL, its officers and the Senior Alpine Racing Committee from any responsibility or liability for any and all personal injuries or death which [***3] may occur during the 1985-86 CMSC Racing Series.
On March 16, 1988, plaintiff filed a 10-count complaint against Ski Council and other defendants who are no longer a part of this action, for damages for personal injuries sustained while participating in the ski race sponsored by defendant. Plaintiff alleged that his injuries are the result of a fall from a compression area in the ski racecourse which caused him to be thrown into the poles marking the finish line. Counts I and II of the complaint alleged negligence and willful and wanton conduct respectively, on the part of defendant.
[*315] Defendant filed a motion to dismiss count II of plaintiff’s complaint on the basis that he failed to comply with section 2-604.1 of the Code of Civil Procedure (Code). Ill Rev. Stat. 1987, ch. 110, par. 2-604.1. On May 19, 1988, the court entered an order granting defendant’s motion to dismiss count II without prejudice. Count II was dismissed on the ground that willful and wanton misconduct constitutes negligence for purposes of claiming punitive damages and a hearing was necessary under section 2-604.1 and absent a hearing, dismissal was required.
Defendant then filed a motion for summary judgment [***4] with respect to count I. Plaintiff in his complaint alleged that defendant owed him a duty of reasonable care in supervising, inspecting, setting up and maintaining the racecourse and its attendant markers, gates and poles. In its motion, defendant argued, and the trial court agreed, that the release form signed by plaintiff barred plaintiff’s action. The motion was granted pursuant to an order entered on April 25, 1991. Plaintiff now appeals the grant of summary judgment.
First, plaintiff contends that trial court’s grant of summary judgment was erroneous (1) with respect to both counts of the complaint against defendant on the basis of its finding that an exculpatory clause was enforceable and therefore barred to the complaint, because the unsafe conditions of the racecourse exceeded the scope of the contemplated risks encompassed by the exculpatory clause which demonstrates that the parties were acting under a mutual mistake of material fact as to the implicit material term of their agreement, which was that the racecourse was presumptively safe; and (2) that the judgment was erroneous with respect to count II of the complaint alleging willful and wanton misconduct on the part [***5] of defendant because exculpatory clauses are void and against public policy when applied to willful and wanton conduct.
In addition to arguing that the trial court erred in granting defendant summary judgment [**1070] as to count I of the complaint, plaintiff now argues for the first time that the grant of summary judgment as to count II of his complaint was improper in that it alleged willful and wanton misconduct. The record shows that pursuant to an order entered on May 19, 1988, count II of plaintiff’s complaint alleging willful and wanton misconduct was dismissed for failure to comply with section 2-604.1 of the Code.
[HN1] Section 2-604.1 of the Code provides that no complaint based upon bodily injury shall contain a prayer for punitive damages. The section further provides that a plaintiff may move for a pretrial hearing thereby seeking leave to amend the complaint to include a prayer for punitive damages within 30 days after the close of discovery. Ill Rev. Stat. 1987, ch. 110, par. 2-604.1.
[*316] In the present case, the order dismissing count II of plaintiff’s complaint was without prejudice, therefore, plaintiff could have sought leave to amend the complaint to include the prayer for punitive [***6] damages. Plaintiff, however, failed to do so. At no point during the trial court proceeding did plaintiff argue that a grant of summary judgment would be improper in light of the complaint alleging willful and wanton misconduct.
Furthermore, in support of his allegation that the trial court’s grant of summary judgment was erroneous with respect to count II, plaintiff now asks us to review the deposition testimony of himself and Ardwell Kidwell as well as the International Ski Competition Rules. Each of these deposition transcripts are attached to plaintiff’s motion for reconsideration of the summary judgment order, but neither of the transcripts was before the trial court when it initially ruled on the summary judgment. At the hearing on the motion for reconsideration of summary judgment, the trial court refused to consider these items on the basis that they were not properly before the court.
[HN2] The scope of an appellate court’s review of a grant of summary judgment is limited to the matters considered by the trial court in ruling on the motion for summary judgment. Certified Mechanical Contractors, Inc. v. Wight & Co., Inc. (1987), 162 Ill. App. 3d 391, 397, 515 N.E.2d 1047, 1051. [***7] Upon review of a summary judgment ruling, an appellate court may only refer to the record as it existed at the time the trial court ruled, outline the arguments made at that time and explain why the trial court erred in granting summary judgment. Rayner Covering Systems, Inc. v. Danvers Farmers Elevator Co. (1992), 226 Ill. App. 3d 507, 509-10, 589 N.E.2d 1034, 1036.
In the present case, the allegations in count II were not before the trial court at the time of its ruling upon defendant’s motion for summary judgment because count II had been dismissed and thus they may not be considered by this court.
We will, however, address plaintiff’s allegation that the trial court’s grant of summary judgment was erroneous with respect to count I of the complaint. Plaintiff argues that the exculpatory clause was not enforceable because the existence of compression bumps at the end of a racecourse and the use of telephone poles as a finish line marker are not within the scope of possible dangers accompanying an alpine ski race. Plaintiff further contends that defendant was not entitled to summary judgment because the parties were acting under a mutual [***8] mistake of material fact as to whether the racecourse was “safe” because the definition of “safe” arguably did not include compression bumps on the course and telephone poles as finish line markers.
[*317] [HN3] Although exculpatory agreements are not favored and will be strictly construed against the benefitting party ( Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 395, 493 N.E.2d 1022, 1029), parties may allocate the risk of negligence as they see fit and exculpatory clauses are not violative of public policy as a matter of law. Reuben H. Donnelley Corp. v. Krasny Supply Co., Inc. (1991), 227 Ill. App. 3d 414, 419, 592 N.E.2d 8, 11.
Under certain circumstances, exculpatory clauses may bar a plaintiff’s negligence claim. Harris v. Walker (1988), 119 Ill. 2d 542, 548, 519 [**1071] N.E.2d 917, 919. [HN4] Exculpatory clauses will be upheld in the absence of fraud; willful and wanton conduct; legislation to the contrary; where the exculpatory clause is not contrary to the settled public policy of this State; where there is no substantial disparity in the [***9] bargaining position of the parties; and where there is nothing in the social relationship of the parties which militates against upholding the agreement. Harris, 119 Ill. 2d at 548, 519 N.E.2d at 919; Reuben H. Donnelley Corp., 227 Ill. App. 3d at 419, 592 N.E.2d at 11; Garrison v. Combined Fitness Centre, Ltd. (1990), 201 Ill. App. 3d 581, 584, 559 N.E.2d 187, 189-90.
Absent any of the above factors, [HN5] the question of whether or not an exculpatory clause will be enforced depends upon whether or not defendant’s conduct and the risk of injury inherent in said conduct was of a type intended by the parties to fall within the scope of the clause. See Larsen v. Vic Tanny, International (1984), 130 Ill. App. 3d 574, 577, 474 N.E.2d 729, 731; see also Simpson v. Byron Dragway, Inc. (1991), 210 Ill. App. 3d 639, 647, 569 N.E.2d 579, 584. The precise occurrence which results in injury need not have been contemplated by the parties at the time the agreement was entered [***10] into. Garrison, 201 Ill. App. 3d at 585, 559 N.E.2d at 190.
In the present case, plaintiff’s injury is a type that was intended to fall in the scope of the exculpatory clause thereby entitling defendant to summary judgment. The exculpatory provision provides as follows:
The undersigned hereby acknowledges that ski racing is a dangerous sport which can lead to serious injury, or even death. The undersigned hereby understands and agrees to personally assume any and all of the liability and risks of alpine racing.
Further, the undersigned hereby agrees to hold harmless [defendants] * * * from any responsibility or liability for any and all personal injuries or death which may occur during the 1985-86 CMSC Racing Series. (Emphasis added.)
While the parties may not have contemplated that plaintiff would be injured by skiing over a compression area in the ski racecourse, they [*318] could and did contemplate a broad range of accidents which occur during skiing, including problems with the surface of the ski racecourse.
The present case is analogous to Schlessman v. Henson (1980), 83 Ill. 2d 82, 86, 413 N.E.2d 1252, 1254, [***11] wherein this court held that a problem with an automobile race track surface was the type of risk which the exculpatory agreement was intended to cover. Although the parties may not have contemplated that a section of the race track would collapse during the race, they did contemplate a “broad range of accidents which occur in auto racing.” See also Garrison v. Combined Fitness Centre (1990), 201 Ill. App. 3d 581, 585, 559 N.E.2d 187, 190 (exculpatory clause contained in health club membership agreement relieved club from liability for injury caused by allegedly defective equipment, where clause stated that each member bore the “sole risk” of injury that might result from use of weights, equipment or other apparatus provided); Neumann v. Gloria Marshall Figure Salon (1986), 149 Ill. App. 3d 824, 827, 500 N.E.2d 1011, 1014 (exculpatory clause which expressly covered all risks of injury “while using any equipment” at the salon was enforceable because an injury to plaintiff resulting from the use of the machines was encompassed in the release).
Cases in which this court has found an exculpatory [***12] clause to be insufficient to release a defendant from liability for personal injuries to plaintiff are distinguishable from the present case. One line of cases wherein an exculpatory clause has been found ineffective have involved injuries or fatalities which clearly do not ordinarily accompany the activity which is the subject of the release. See Simpson v. Byron Dragway, Inc. (1991), 210 Ill. App. 3d 639, 649-50, 569 N.E.2d 579, 585-86 (a question of fact existed as to whether or not striking a deer while operating a race car on a drag strip was the type of risk which ordinarily accompanies the sport of racing); Larsen v. Vic Tanny, International (1984), 130 Ill. App. 3d 574, 578, 474 [**1072] N.E.2d 729, 732 (exposure to noxious fumes which injured plaintiff’s respiratory system was not a foreseeable risk related to the use of a health club). In the present case, however, the injuries to plaintiff resulting from a fall from a compression area in the ski course is a risk inherent in ski racing and as such falls within the scope of the exculpatory clause.
Another line of cases has held that the language of [***13] an exculpatory clause did not shield a defendant from liability that the language of the exculpatory clause was ambiguous with respect to which activities were covered. See Macek v. Schooner’s, Inc. (1991), 224 Ill. App. 3d 103, 106, 586 N.E.2d 442, 444-45 (genuine [*319] issue of material fact precluded summary judgment for sponsors of arm wrestling contest in personal injury action brought against it by a participant who was injured in the contest, existed as to whether the intent of the clause was to release the promoter of liability when injury resulted from the participant’s physical condition, or when injury resulted from the promoter’s negligence); Calarco v. YMCA of Greater Metropolitan Chicago (1986), 149 Ill. App. 3d 1037, 1043, 501 N.E.2d 268, 272 (statement that “participation in any of the activities of the YMCA” was ambiguous in that it could be read to mean that the exculpatory clause only pertained to participating in activities at the YMCA but not to liability from the use of equipment at the YMCA). The language of the exculpatory clause at issue in the present case is [***14] explicit and unambiguous and is thus sufficient as a matter of law to relieve defendant from liability.
Accordingly, the trial court’s grant of summary judgment to defendant was proper as there was no genuine issue of material fact as to whether the exculpatory agreement encompassed plaintiff’s injuries.
For the above reasons, we affirm the trial court’s grant of summary judgment.
AFFIRMED.
TULLY, P.J. and CERDA, J., concur.
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